Monday, May 11, 2015
You be the judge: what federal sentence for latest CIA media leaker?
As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:
The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security. By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.
Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions. The range of options she has to consider is broad.
Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer. Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.
Neither side has offered a specific recommendation on prison time. Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.
Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”
But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.
But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different. “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence. “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”
Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.
Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.
Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....
Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.
Prior related posts:
- Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
- Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
Wednesday, May 06, 2015
Imprisonment for 15 years for sex on the beach?!?! Really?!?!
I had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime. This local story, headlined "Couple found guilty of having sex on Florida beach," explains:
A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.
Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.
Both Caballero and Alvarez will now have to register as sex offenders.
A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.
The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."
Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.
Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."
Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."
Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."
Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."
I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.
In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.
Friday, May 01, 2015
Federal indictments and a plea deal in New Jersey "Bridgegate" scandal
As reported in this CNN piece, headlined "Bridgegate: 1 guilty plea, 2 indictments and 'liars'," a couple of federal indictments hit the fan today for officials formerly in the administration of NJ Gov Chris Christie. Here are the basics:
Two senior government officials with ties to New Jersey Gov. Chris Christie were indicted Friday in the scheme to close lanes and create traffic tie-ups on the George Washington Bridge, hours after a former key Christie ally pleaded guilty in the act of political retribution against a mayor who did not back the governor in his re-election campaign two years ago.
Former Christie Deputy Chief of Staff Bridget Kelly and Port Authority Deputy Director Bill Baroni were charged with a total of nine criminal counts, including conspiracy and fraud, U.S. Attorney for New Jersey Paul Fishman said at an afternoon press conference. The charges came after David Wildstein, a former Christie ally and Port Authority appointee, pleaded guilty earlier Friday to one charge of conspiracy to commit fraud on federally funded property and one civil rights violation.
"They agreed to and did use public resources to carry out a vendetta and exact retribution," Fishman said, adding that the scheme "callously victimized the people of Fort Lee," who were just trying to go about their lives.
In her first public comments since the scandal surfaced, Kelly proclaimed her innocence Friday at a press conference and slammed Wildstein and her former colleagues as liars. "David Wildstein is a liar."...
Although the developments deepen the stain the scandal has left on Christie's tenure, Fishman indicated the governor would likely avoid any criminal charges. "Based on the evidence that is currently available to us, we're not going to charge anybody else in this scheme," he told reporters, noting that he would not usually disclose that information. "I say it because the public has a right to know certain things."...
In his plea, Wildstein admitted to using a "traffic study" as a cover for the lane closures and choosing the first day of school to maximize the impact. Wildstein also admitted to purposefully not alerting Fort Lee Mayor Mark Sokolich or the town's police chief, and admitted to intentionally keeping "radio silence" with local officials on the issue....
After the court hearing Friday, Wildstein's lawyer, Alan Zegas, said the government was satisfied with Wildstein's cooperation and reiterated the claim that Christie knew of the closures. "Mr. Christie knew of the lane closures while they were occurring and evidence exists to establish that. That is as much as I can say, as much as I will say at this time," Zegas said.
It is not yet clear whether Wildstein struck a plea deal with prosecutors to give them more information into how the scandal unfolded. But Fishman suggested that Wildstein could benefit from his cooperation, noting that "it is typical" for judges to take into account defendants' cooperation during sentencing.
Fishman also said that the investigation identified other co-conspirators who were not indicted. He declined to name them, but said they could be identified later. He would not elaborate on why those co-conspirators were not indicted.
"Baltimore prosecutor charges police with murder, manslaughter in death of Freddie Gray"
The title of this post is the current headline of this notable breaking FoxNews report. Here are the basics:
Prosecutors charged six Baltimore police officers Friday with crimes ranging from murder to assault in the death of Freddie Gray, the 25-year-old black man whose death last month of injuries apparently suffered in police custody touched off peaceful protests that degenerated into a night of rioting, looting and chaos Monday.
State's Attorney Marilyn Mosby, speaking at a Friday news conference, blasted the six police involved in Gray's arrest on April 12, during which he suffered a broken neck that proved fatal a week later. Mosby said the police had no basis for arresting Gray, who police said avoided eye contact and was carrying a switchblade. One police officer, identified as Caesar Goodson, 45, was charged with second-degree murder, while others were charged with crimes including manslaughter and assault.
"No one is above the law," declared Mosby, who said she comes from three generations of law enforcement and has been on the job for four months.
Recent related posts:
- Inspiring remarks from the new Attorney General in DC ... while Baltimore burns to the north
- David Simon connects Baltimore's woes to the drug war
Judicial second-thoughts leads to greatly reduced prison sentences for cheating Atlanta school administrators
As reported here a few weeks ago, the judge presiding over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests ordered three of the defendants to serve seven years in state prison. But, as this CNN article reports, now that same judge has reduced their sentences to three years in prison. Here is why:
"I'm not comfortable with it," Fulton County Superior Court Judge Jerry Baxter said of the sentences he handed down to the three defendants April 14. "When a judge goes home and he keeps thinking over and over that something's wrong, something is usually wrong."
Tamara Cotman, Sharon Davis-Williams and Michael Pitts also were ordered Thursday to serve seven years on probation, pay $10,000 fines and work 2,000 hours in community service.
Baxter had come under fire from some community leaders for giving prison sentences to eight teachers and administrators who stood trial and were convicted of racketeering. They'd been accused of taking part in an effort to raise tests scores at struggling schools by erasing wrong answers and putting in correct answers.
Outside of court, Benjamin Davis, the lawyer for Cotman, questioned the judge's rationale in handing down heavy sentences a few weeks ago. "I had never seen a judge conduct himself in that way," he said. "What was going on with Judge Baxter?"
Davis-Williams said she was pleased judge Baxter changed his mind. Her attorney, Teresa Mann, added, "We are happy. We are elated that judge Baxter took the opportunity to reflect." Cotman, Davis-Williams and Pitts, all school reform team executive directors, got the harshest sentences during an April 14 hearing: Seven years in prison, 13 years of probation and $25,000 fines.
Baxter said of his change of mind: "I'm going to put myself out to pasture in the not-too-distant future and I want to be out in the pasture without any regrets."
During the earlier sentencing hearing, Baxter was frustrated when defendants didn't admit their guilt. "Everybody knew cheating was going on and your client promoted it," Baxter said to an attorney representing Davis-Williams. At one point he said, "These stories are incredible. These kids can't read."
At a press conference held April 17, most of the convicted educators insisted they were innocent. "I didn't cheat. I'm not a racketeer," said Diane Buckner-Webb, a former elementary teacher.
All defendants sentenced to prison have appealed and are out on bond. The lower prison sentences given to other defendants -- ranging from one to two years -- have not been reduced....
Of 35 Atlanta educators indicted in 2013, more than 20 took a plea deal. Twelve educators went on trial six months ago, with 11 convicted and one acquitted on April 1. Of the 11 convicted, two took a deal in which they admitted guilt, waived their right to appeal and received much lighter sentences. One defendant was giving birth during the sentencing phase not been sentenced.
On Thursday, Baxter urged the defendants to engage in community service while they're appealing. He said that might lighten the punishment if the convictions are upheld. The judge said he was tired of dealing with the Atlanta Public Schools cheating scandal, which he referred to as "this mess."
"I'm ready to move on. So, anyway, adios," Baxter said, and ended the hearing.
Notably, under federal law, a judge is not legally permitted to change a sentence based only on subsequent second thoughts about the appropriateness of the sentence. I have long understood (though not always thought wise) that a federal judge gets only one bite at the sentencing apple, and I would love to hear from commentors whether they this is it just and appropriate to let sentencing judges adjust sentences in the way and for the reasons done in this state case.
Prior related post:
Thursday, April 30, 2015
Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank
A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here). This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:
The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).
The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.
The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand. The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.
In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.
Tuesday, April 28, 2015
Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
This new Forbes article, headlined "Ulbricht's Defense Calls For Delayed Sentencing After Feds Reveal Six Alleged Silk Road Drug Overdose Deaths," reports on a notable new development in the lead up to the sentencing of a notable federal defendant. Here are the details:
The twists and turns in the Silk Road case aren’t slowing down as Ross Ulbricht’s sentencing approaches. According to a letter filed Friday, the government claims that six people allegedly died of overdosing on drugs bought on the Silk Road. Two of their parents will be speaking at Ulbricht’s sentencing, which is currently scheduled for May 15, 2015.
Because of this, Ulbricht’s defense is asking for his sentencing to be postponed for at least one month. In a letter on Friday, Joshua Dratel requested an adjournment of the sentencing, which is currently less than three weeks away. By Dratel’s logic, it shouldn’t matter to the prosecution, since Ulbricht is in jail already awaiting sentencing, but it would give the defense time to prepare.
The defense wants preparation time to respond to the government’s revelation on April 16 that there were “six alleged overdose deaths supposedly attributable to drugs purchased from vendors on the Silk Roads.” The parents of two of the alleged overdose victims will be speaking from 10-15 minutes each at the sentencing, according to a document filed by the prosecution on April 17. The government intends to use these deaths as part of the context for the sentencing and the victim impact assessment.
Dratel says the information the defense has received about the six deaths is “woefully incomplete.” According to the letter, the defense hasn’t seen evidence that the drugs were purchased on the Silk Road or certain autopsy, toxicology, and psychiatric information for the six individuals. Additionally, Dratel asked for the identities and statements of the two parents who will be speaking at the sentencing in order to avoid being “blindsided.”
While the government seems to [be] planning to hammer home its argument that the Silk Road was a dangerous and illegal operation with Ulbricht at the helm with these parents’ testimonies, the defense plans to argue the opposite–that the Silk Road actually made drug use safer. In the letter, Dratel states that the Silk Road “reduced the dangers of substance abuse, and consciously and deliberately incorporated ‘harm reduction’ strategies.” The defense has been working with experts, according to the letter, and needs more time to bring those witnesses to testify in person in response to the government....
After being arrested in a San Francisco library in October 2013 for allegedly running the Silk Road, Ulbricht faced trial in January 2015. After three weeks of trial and 3.5 hours of jury deliberation, he was found guilty of seven charges connected to his role as the Dread Pirate Roberts. Since then, he’s been in jail awaiting sentencing while his lawyers fought first for re-trial and now for delayed sentencing.
Prior related post:
Friday, April 24, 2015
Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
This notable new Washington Post article, headlined "Attorneys ask judge to consider Petraeus in sentencing ex-CIA officer Sterling," the seemingly lenient treatment given yesterday to former CIA director David Petraeus for leaking information to his journalist/mistress (basics here) is already having an echo effect in other federal criminal cases. Here are the interesting details:
Defense attorneys for the former CIA officer convicted of giving classified information to a New York Times reporter urged a federal judge on Friday to sentence their client in line with the terms faced by other so-called leakers — noting that not 24 hours ago, a retired general and ex-CIA director was given mere probation in a similar case.
Defense attorneys for Jeffrey Sterling did not endorse a specific penalty, but they urged U.S. District Judge Leonie M. Brinkema to consider the impact of the case and be fair. The defense attorneys argued that in three other recent leak cases, those convicted received — at the most — 30 months in prison. On Thursday retired general and former CIA chief David Petraeus was sentenced to two years of probation and a $100,000 fine. “In meting out justice,” defense attorneys wrote, “the Court cannot turn a blind eye to the positions the Government has taken in similar cases.”
Sterling, 47, was convicted in January of nine criminal counts after jurors determined unanimously that he gave classified information to New York Times reporter James Risen about a sensitive operation to put faulty nuclear plans in the hands of Iranian officials. Federal prosecutors earlier this week urged a judge to impose a “severe” sentence and said they felt the U.S. probation office had correctly calculated the range in the federal sentencing guidelines as 19 years 7 months on the low end and 24 years 5 months on the high end.
Such a sentence would have few parallels: The closest might be the 35-year prison term imposed by a military judge on Chelsea Manning, who leaked the largest volume of classified documents in U.S. history. And Sterling’s defense attorneys argued that a prison term within the guidelines would be “plainly excessive,” essentially penalizing Sterling for not taking a plea deal. “Mr. Sterling was convicted, under the Espionage Act, for ‘leaking’ information to a reporter,” defense attorneys wrote. “He should be treated similarly to others convicted for the same crimes and not singled out for a long prison sentence because he elected to exercise his right to a trial.”
Defense attorneys pointed to two similar cases in which alleged leakers reached plea agreements and avoided decades behind bars. Former CIA officer John Kiriakou, who revealed the name of another covert officer, was ultimately sentenced to 30 months in prison, and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter, was ultimately sentenced to 13 months in prison, defense attorneys argued. They argued that Petraeus, who lied to the FBI, reached a deal to avoid prison entirely. “Mr. Sterling should not receive a different form of justice than General Petraeus,” Sterling’s defense attorneys wrote.
Prosecutors have characterized Sterling’s case as “unique” and argued that the harm he caused to national security was grave. They have argued that Sterling, motivated by “pure vindictiveness,” leaked details that compromised one of the nation’s few ways to deter Iran’s nuclear ambitions, and in doing so, put a Russian scientist who was working with the CIA in danger....
Sterling is scheduled to be sentenced May 11.
Why the US Sentencing Commission's moderate moderation of fraud guidelines has few fans
This new Huffington Post piece, headlined "Why Nobody Is Really Happy With New Guidelines For Punishing White-Collar Criminals," provides an effective review of why the US Sentencing Commissions new amendments to the fraud guidelines is not garnering widespread praise. Here are excerpts:
A federal panel voted earlier this month to amend the guidelines that federal judges use when sentencing people who commit economic crimes. But few are happy with those changes: Sentencing reform advocates say they don't go far enough to fix draconian sentences, while the U.S. Department of Justice contends that the changes could give some white-collar criminals a new avenue for unfair leniency.
Recommended sentences for economic crimes under the current rubric are so severe, they are no longer taken seriously, some prosecutors and judges suggest. Those guidelines have relied on complicated calculations involving criminal gain and inflicted losses that spit out sentences that can appear inconsistent or absurd. One federal New York judge called the math "hocus-pocus." In 2008, for example, a federal judge sentenced a 72-year-old man to 330 years in prison for an investment scam.
The U.S. Sentencing Commission is responsible for coming up with the road map that federal judges can use when issuing these sentences. On April 9, the commission approved new guidelines, which now will be submitted to Congress and will go into effect in November, unless lawmakers intervene.
Chief Judge Patti Saris, who chairs the commission, contended last week that the economic crime guidelines are not broken, but has acknowledged that they could provide more clarity on what to do in the cases of certain first-time, low-level offenders. The changes aim to make punishments more fair by giving greater weight to a criminal's role and his or her intent....
In March, the Justice Department came out against some of these changes, in favor of more targeted reforms. DOJ is worried that the intent clarification could allow white-collar criminals to claim they never meant to hurt anyone. A fraudster running a Ponzi scheme who is caught early, for example, could argue that he hoped the scheme wouldn't fail.
It makes sense that the Justice Department would want to preserve the option to impose harsher sentences in certain cases. Frank Bowman, a professor at the University of Missouri School of Law who has commented on the draft guidelines, said that from DOJ's perspective, stringent guidelines can give them leverage when negotiating plea bargains.
But some legal experts argue that the Obama administration is missing the point in this case. "All we want to do is make guidelines such that a federal prosecutor can actually look a federal judge in the face and say, 'Impose these guidelines as written,'" Bowman said. If the guidelines had more credibility, he added, judges might be more inclined to follow them and hand down stronger sentences. "The Justice Department is cutting off its nose to spite its face," he said.
Mark Holden, senior vice president and general counsel for Koch Industries, told The Huffington Post that he considered the commission's emphasis on offender intent "a positive development and consistent with the Bill of Rights." He added that the guidelines "are an effort to make the punishment fit the crime," but that more needs to be done on criminal justice reform overall....
Advocates say that when it comes to sentencing reform, there are parallels between drug crimes and economic crime. Mary Price, general counsel for Families Against Mandatory Minimums, asked, "Do we just count drugs, or do we look at [the harm] people really intended? How much harm did they cause? … Are they the courier or the mastermind?" She added that she was disappointed with the pending changes to the economic crime guidelines, calling them "rather minimal."
Prior related posts:
- US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)
- Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission
Thursday, April 23, 2015
Florida Supreme Court reverses cop killer's death sentence on proportionality review
As reported in this local article, the "Florida Supreme Court has overturned the death sentence of Humberto Delgado, who was convicted of gunning down Tampa police Corporal Mike Roberts in 2009." Here are the details of why:
In an opinion issued Thursday, a unanimous court ruled that Delgado's extreme mental illness, coupled with the circumstances of the crime, made a death sentence disproportionate as compared with other murder cases. The court sent the case back to the circuit court, where Delgado will be resentenced to life in prison with no chance of release....
Delgado, 40, who once worked as a police officer in his native Virgin Islands, was sentenced to death in 2012. At his trial, doctors testified about Delgado's history of delusions and psychotic behavior. All diagnosed him with bipolar disorder with varying degrees of psychosis.
Their examinations revealed that in his early adulthood, Delgado was plagued by a belief that police were out to kill him and that people were following him and sitting in trees outside his home. He also told his family that he had to cut off his children's legs because they were "goat legs" and they were "evil." He was known to wander the streets at night, saying that demons, the Masons, and the rapper 50 Cent were trying to kill him.
Delgado had been hospitalized multiple times before he ended up living with relatives in Oldsmar. On Aug. 19, 2009, he walked 15 miles from there, pushing a shopping cart that held four guns, on his way to a veterans hospital in Tampa. That night, Roberts stopped Delgado near the corner of Nebraska Avenue and Arctic Street. Delgado gave Roberts his identification. When Roberts started to search his belongings, Delgado tried to run. Roberts then shocked Delgado with a Taser. Delgado hit Roberts several times before shooting him....
In its opinion, the Supreme Court noted that the death penalty is intended for cases in which the aggravating factors greatly outweigh any mitigating factors presented by the defense. "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions," the justices wrote. "However ... we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases."...
Mentally ill inmates are rarely executed in Florida, due to the length of the appeals process and the moral, ethical and legal issues associated with executing the insane. Recently, courts have trended away from capital punishment for the mentally ill.
The full opinion is available at this link.
Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
The question in the title of this post is prompted by the sorted story surrounding the criminal misdeeds of former CIA director David Petraeus. This press report, with the subheadline "Former CIA director and military commander expected to plead guilty to sharing government secrets with his biographer and lover, Paula Broadwell," provide the backstory leading up to this afternoon's sentencing of a high-profile federal defendant:
A scandal that began to unravel in Charlotte ends in Charlotte on Thursday when former CIA Director David Petraeus is expected to admit sharing top government secrets with his biographer and lover.
Under a February agreement with prosecutors, Petraeus, 62, will plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine. The government will recommend that punishment for the former commanding general in Iraq and Afghanistan be limited to two years’ probation and a $40,000 fine.
U.S. Magistrate Judge David Keesler, who will preside over Petraeus’ hearing, is not bound by the plea deal. But legal experts say judges typically give great weight to such agreements.
Critics say the retired general is getting off light, given how zealously the Obama administration has pursued government leaks. By comparison, CIA analyst and case officer John Kiriakou, the whistleblower who revealed the secret CIA torture program, is serving a 30-month sentence. Open-government groups say President Barack Obama’s lieutenants have prosecuted more leakers than the rest of U.S. administrations combined.
“It’s hard to reconcile cases like that, and it leads to the conclusion that senior officials are held to a different and more forgiving standard than others,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists in Washington, D.C.
The case against Petraeus, a former Obama confidant, has apparently troubled the administration from the start. The New York Times reported earlier this year that Attorney General Eric Holder was resisting the recommendations of his staff to charge Petraeus with a felony that could have led to possible prison time.
Petraeus resigned three days after Obama’s 2012 re-election. Up to then, the retired four-star general was among the most respected military leaders of modern times. He was sometimes mentioned as a future presidential or vice presidential candidate.
That all began to change three years ago. Paula Broadwell of Charlotte had already written “All In,” Petraeus’ biography. But in May 2012, the West Point graduate began sending a series of anonymous emails disparaging Jill Kelley of Tampa, Fla. Kelley was a friend of Petraeus and other military leaders. Broadwell, documents say, considered her a romantic rival.
Using “Tampa Angel” and at least one other pseudonym, Broadwell sent some of her emails from the old Dilworth Coffee shop on East Boulevard. Within weeks, the FBI had traced the messages back to Broadwell. In June 2012, agents visited the Dilworth home she shares with her husband, radiologist Scott Broadwell, and their two children. A search of her email accounts uncovered the affair. Prosecutors say Broadwell’s computer housed classified information that went far beyond her security clearance as a major in the Army Reserve.
Petraeus resigned as CIA director on Nov. 9, 2012. Court documents filed by acting U.S. Attorney Jill Rose of Charlotte and others say Petraeus shared eight “black books” with Broadwell that he compiled in Afghanistan. Prosecutors say the books held everything from secret codes and the identities of covert officers, to war strategy and notes from National Security Council meetings. Broadwell kept the books for at least four days beginning in August 2011, prosecutors say. The FBI later seized the books during an April 2013 raid on Petraeus’ home.
Petraeus lied to investigators about both having classified information and sharing it with Broadwell, according to court documents. Prosecutors say none of the classified material appeared in Broadwell’s book.
I am troubled by the appearance of disparate favorable treatment being shown to Petraeus, especially given how serious his offense conduct seems and his lies to investigators (which could have been charged as obstruction of justice). Unfortunately, I do not think federal prosecutors have ever explained — or will ever have to explain — just why they gave Petraeus a seemingly "sweetheart" deal (every pun intended there). Without any such explanation from federal prosecutors concerning how they exercised their charging and bargaining discretion in this case, it is difficult for me to make an informed judgment on the sentence being recommended by prosecutors for the former CIA director.
UPDATE: This CNN piece reports on the outcome via its headline: "Petraeus sentenced: 2 years probation; $100K fine." By Theodore Schleifer,
"There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."
The quote in the title of this post is the amusing first line of the sole dissenting opinion authored by Judge Rawlinson in the en banc reversal by the Ninth Circuit of Barry Bonds' federal conviction for obstruction of justice. The other 10 judges in the en banc court considering US v. Bonds, No. 11-10669 (9th Cir. April 22, 2015) (available here), had a variety of different views about why the slugger's conviction could not stand, and all the lengthy opinion are worth reading for anyone concerned about the potentially very broad reach of the federal crime of obstruction of justice. Here is the two-paragraph per curiam part of the opinion that reflects its actual holding:
During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
I would guess Barry Bonds is pleased to be now free from a federal conviction and its collaterally consequences, I would also guess getting to this point cost him a very big bill in attorneys' fees.
Tuesday, April 21, 2015
"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday. The piece is authored by Leah Litman, and here is the abstract:
This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief. In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause. It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.
April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, April 20, 2015
Intricate federal criminal law statutory questions on SCOTUS docket this week
Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases. But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal:
Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].
McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:
In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."
Friday, April 17, 2015
US Sentencing Commission releases data report on illegal reentry offenses
Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:
This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases. Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines. In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases. As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.
Part I of this report summarizes the relevant statutory and guideline provisions. Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles. Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases. Part IV presents key findings.
Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.
In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations. The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.
Thursday, April 16, 2015
Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal
This story from the Dallas Morning News tells the remarkable story of a remarkable defendant with a remarkable inability to stop drinking and driving. The piece is headlined "Author Jim Dent gets 10-year prison sentence after 10th DWI," and here are the basics:
Best-selling author Jim Dent was sentenced Wednesday to 10 years in state prison as part of a plea deal with Collin County prosecutors. The author of such books as The Junction Boys and Manziel Mania had pleaded guilty in November 2013 to two driving while intoxicated charges – his ninth and 10th such convictions that spanned more than three decades and four states.
But Dent fled to Mexico rather than attend his sentencing hearing at the McKinney courthouse in February 2014. He said he spent a year south of the border before hitting rock bottom and deciding to return to the states. He was arrested crossing the border into San Diego in late January and transported to Collin County in February to face the charges.
Dent worked as a sports writer covering the Dallas Cowboys for more than a decade for the Fort Worth Star-Telegram and the Dallas Times Herald. In 1991, he quit the newspaper business and became a nationally syndicated radio talk show host. He also started writing books. His status in sports circles and his bigger than life personality paved the way for his access to big names and exclusive events.
Because of the plea agreement, Thursday’s previously scheduled sentencing hearing was canceled as was the testimony from several witnesses. Instead, Dent appeared on video from the Collin County jail before District Judge James Fry for his sentencing. The video jail appearances are routine in cases that have been previously settled and save the county the costs of transporting inmates from the jail to the courthouse....
As part of the plea deal, Dent was sentenced to the previously agreed upon eight years in prison on the DWI charge from October 2012 in Allen. In that instance, Dent’s ex-girlfriend called police because Dent was trying to force her out of her car. He then rammed her car into her neighbor’s garage door with his F150 pickup. He was also sentenced to the maximum penalty of 10 years for the DWI charge from May 2013. In that case, a passer-by reported Dent driving recklessly in Allen before stopping at a Walgreens. Police were waiting for Dent when he came out of the store carrying a case of beer and a bottle of wine.
Because he skipped out on his sentencing hearing, Dent was also charged with two counts of bail jumping and failure to appear. He pleaded guilty Wednesday to both third-degree felony charges and was sentenced to the maximum 10 years in prison. All four prison sentences will be served at the same time. Dent will also get credit for time served.
As part of the plea agreement, prosecutors were able to declare Dent’s vehicle as a deadly weapon in both DWI charges. That finding means Dent will be required to serve at least half of his prison sentence before he is eligible for parole. Dent still has a DWI charge pending in Williamson County after he failed to appear for sentencing. In that case, Dent crashed into a tollbooth along State Highway 45 in Austin. He also has an active warrant in Garland County, Ark., for failing to comply with court orders after his DWI conviction there in 2007.
Dent’s drunken driving convictions date back to 1983 and include convictions in Arkansas, Oklahoma and Nevada as well as the Texas counties of Denton, Dallas, Brazos, Williamson and Collin. His court records over the years include multiple references for failing to appear in court, violating provisions for community supervision and continuing to drink alcohol. He drove while his driver’s license was suspended. And on several occasions, the only thing that kept him from driving drunk was the court-ordered ignition interlock device that prevented his vehicle from starting when it detected alcohol on his breath. Bonds were revoked, he got re-arrested and he posted new bonds....
In a jail interview last week, Dent said he was an alcoholic. He also declared he’d had his last drink before crossing the border. This will be his third entry in the state prison system. Dent was previously sentenced to eight years in prison after violating probation on a felony DWI charge out of Brazos County. He served nearly 22 months before being paroled. He was re-incarcerated for another three months after violating the terms of his parole.
Dent’s 10 convictions stood out largely because they came during his successful book career. But he’s far from alone. More than 1.1 million people were arrested across the country on charges of driving while intoxicated in 2013, according to the latest FBI crime statistics.
For an even fuller account of this defendant's life and times, the Dallas Morning News recently published this profile headlined "Jim Dent: The man, his books and the bottle."
Wednesday, April 15, 2015
Former NFL star Aaron Hernandez convicted of first-degree murder and to get mandatory LWOP
An this CNN piece reports, "former New England Patriots' star Aaron Hernandez nodded no as jurors in his Massachusetts trial found him guilty Wednesday of first degree murder, which carries a penalty of life imprisonment without the possibility of parole." Here is more:
Hernandez was also found guilty of unlawful possession of a firearm and unlawful possession of ammunition. He will be sentenced Wednesday morning....
Hernandez was on trial for the shooting death of Odin Lloyd, whose body was found in a Massachusetts industrial park in June 2013. Lloyd's family appeared anxious in the Fall River, Massachusetts, courtroom prior to the verdict, as did the mother of Hernandez....
The sensational trial started in late January, just days before the Patriots' Super Bowl victory over the Seattle Seahawks. Prosecutors took months to present more than 130 witnesses to build their case. The defense wrapped up its witnesses in less than a day.
Prosecutors say Lloyd was seen June 17, 2013, around 2:30 a.m. with Hernandez and Hernandez's friends, Carlos Ortiz and Ernest Wallace, in a rented silver Nissan Altima. Later that day, a jogger found his body riddled with gunshots. Wallace and Ortiz, who were also charged with murder, have pleaded not guilty, and will be tried separately.
Hernandez's attorney, Sultan, told jurors that Hernandez "witnessed" Lloyd's killing, "committed by somebody he knew," and that the former NFL player "really didn't know what to do, so he put one foot in front of another" and moved on with his life. Two other men who were drug dealers allegedly killed Lloyd, Sultan told the jury.
Because this murder conviction carried a mandatory life without parole sentence under Masschusetts law, the sentencing process is something of a formality and thus can (and will) take place on the same day as the verdict was reached.
Tuesday, April 14, 2015
Tough (and record-long) sentences for cheating Atlanta school administrators
As reported in this lengthy USA Today article, "3 in Atlanta cheating scandal to serve 7 years prison," today was final sentencing day in a high-profile and seemingly unique state white-collar criminal case from Georgia. Here are the details (with my emphasis added):
In a testy courtroom Tuesday, a judge presided over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests, telling three defendants that they would serve seven years in prison.
Despite the contentions from Sharon Davis-Williams' and Tamara Cotman's lawyers that they had maintained their innocence and are first offenders, Judge Jerry Baxter of Fulton County Superior Court said that each is being sentenced to 20 years in prison, will serve 7 years of incarceration with the balance as probation and also must do 2,000 hours of community service and pay a $25,000 fine.
"She's convicted, and she's at the top of the food chain," Baxter said of Davis-Williams, who along with Cotman and Michael Pitts were regional directors in the city's school system during one of the country's largest cheating scandals. "Your client ran numerous fine educators out. She non-renewed them."
Pitts received the same sentence and also was sentenced to five years, to run concurrently, on a charge of influencing a witness. The sentences were higher than prosecutors' recommendations.
Although Baxter initially did not want to consider the top administrators as first offenders, he decided to allow that status for all 10. That will allow each to have their convictions erased upon completion of their sentences.
Two of those convicted, former testing coordinator Donald Bullock and former teacher Pamela Cleveland, decided to take a plea deal that prosecutors had offered. Cleveland became the only one of the former educators to elude jail time.
Any deals required an acceptance of responsibility from the former educators, District Attorney Paul Howard said. Bullock, who took the deal before Tuesday's hearing, was sentenced to five years probation, will serve six months in jail on weekends, give 1,500 hours of community service and pay a $5,000 fine.
Cleveland, who apologized in court, was sentenced to five years probation including one year 7 p.m.-to-7-a.m. home confinement, 1,000 hours of community service and a $1,000 fine. Prosecutors took into consideration her elderly parents, so she will be able to serve her home confinement at their house or any hospital where either might be a patient.
Bullock also will apologize and both waived their right to appeal. All were sentenced Tuesday after the judge in the case gave them extra time to negotiate deals with prosecutors.
The former educators' community service will be served at Atlanta's jail teaching inmates, some of whom are the victims of the problems in Atlanta's school system, Baxter said. "I think there were hundreds, thousands of children who were harmed," the judge said. "That's what gets lost in all of this."
Some of the defendants' lawyers pushed back at the expectation of a deal being reached, causing Baxter to cut them off and say he was ready to deliver his sentences immediately. He had delayed sentencing after learning that Howard had been talking to defense attorneys and thought the case could be resolved with sentencing deals. "I just wanted them to get a taste of it," Baxter said of the sentences he had in mind after he quickly delivered Davis-Williams' and Cotman's punishment. "Apparently, that didn't quite move them."
In an exchange with Pitts' lawyer, Baxter said he was worried that some of those convicted were more remorseful that they were caught than they were about cheating young students out of an education. "They should have rose up and said no," the judge said of pressure to alter standardized test scores. "They didn't, and here we are."
The former educators were convicted April 1 on a racketeering charge. Some faced additional charges. They had been accused of falsifying test results to collect bonuses or keep their jobs in Atlanta Public Schools. In all, 35 educators were indicted in 2013 on charges including racketeering, making false statements and theft. Many pleaded guilty and some testified at the trial.
A state investigation found that as far back as 2005, educators fed answers to students or erased and changed answers on tests after they were turned in. Evidence of cheating was found in 44 schools with nearly 180 educators involved, and teachers who tried to report it were threatened with retaliation.
This is fascinating stuff both with respect to sentencing procedure and sentencing outcomes, especially because it seems that the failure to show remorse and waive rights to appeal explains the length of the various sentences as much, if not more, than the actual criminal conduct. Wowsa (and perhaps the basis for some interesting future appeal issues).
As the title to this post indicates, I would guess these sentences are harshest ever given to cheating school administrators. That said, it does seem the behavior here was maybe the worst, long-running examples of school cheating ever prosecuted criminally.
Monday, April 13, 2015
Blackwater guards who shot Iraqi civilians all given lengthy federal sentences
As reported in this new Washington Post piece, a "federal judge in Washington handed down prison terms of 30 years to life behind bars to four Blackwater Worldwide guards convicted in a deadly 2007 shooting that killed 14 unarmed Iraqis and injured others in a Baghdad traffic circle." Here are the basic details:
U.S. District Judge Royce C. Lamberth sentenced Nicholas A. Slatten of Sparta, Tenn., to life in prison. Slatten is the only of the four guards convicted of murder in the incident, in which American security contractors fired assault rifles and grenades into halted noonday traffic, a low point of the U.S. war in Iraq that sent relations between the two countries into a crisis.
Three other guards, Paul A. Slough of Keller, Tex.; Evan S. Liberty of Rochester, N.H.; and Dustin L. Heard of Knoxville, Tenn., were convicted of multiple counts of manslaughter and attempted manslaughter in the Sept. 16, 2007, incident at Baghdad’s Nisoor Square. All three were sentenced Monday to 30 years plus one day in prison.
Sunday, April 12, 2015
Considering one defendant getting a second look due to Miller retroactivity
One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP. Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant. The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:
Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.
He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.
From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.
At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead. Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.
But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....
The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.
Ten states, including Illinois, are applying the standard to pre2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive. The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....
Here and around the country, victim rights groups have strongly opposed the reopening of past sentences. “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a cofounder and board member of the National Organization of Victims of Juvenile Murderers.
She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said. “Our mother was devastated.”
A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone.
Recreating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.
Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....
Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.
The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence. Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...
The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court. During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.
April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, April 10, 2015
Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction
Long-time readers may recall the remarkable state sentencing story, covered here and here, involving Daniel Enrique Guevara Vilca. In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children. On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today. Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):
Daniel Guevara-Vilca appeals his convictions for possession of child pornography. Owing to a discovery violation by the State, we reverse and remand for a new trial....
During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count. The file names generally contained descriptive terms. All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program. The files were found in thirteen different folders on the computer, including the recycle bin....
The jury returned guilty verdicts on all 454 counts. Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment. The trial court sentenced Guevara-Vilca to 454 concurrent life terms....
Guevara-Vilca raises multiple issues on appeal. We agree with his assertion that the trial court erred in its handling of the State's discovery violation. The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....
We reverse Guevara-Vilca's convictions and remand for a new trial. This renders moot, for now, the sentencing issue raised on appeal. Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment. Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand. But the issue, if raised, deserves serious consideration by the sentencing court. Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.
Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors. Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's." Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).
Prior related posts:
- Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
- "Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
Thursday, April 09, 2015
"Reality check: Is sex crime genetic?"
The question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way. Here are excerpts:
A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.” The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.
But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.
Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse. Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....
Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns. Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well. Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.
The team did do some analysis by type of offense, separating rape from child molestation, for example. But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature. There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.
In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse. In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.
The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....
In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses. But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.
Effective coverage of legal land mine created by DOJ spending restriction in medical marijuana cases
As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Today, the New York Times has this extended and informative discussion of this federal congressional directive and its uncertain meaning and impact four months after its enactment. The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:
In December, in a little-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”
In the most advanced test of the law yet, [medical marijuana defendant Charles] Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.” In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”
But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.
With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....
The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance. “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.
Mr. Farr said, “For the feds to come in and take this hardline approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.” The sponsors said they were planning how to renew the spending prohibition next year.
Some prior related posts:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Impact of the 2015 federal budget's medical marijuana spending restriction remains unclear
Wednesday, April 08, 2015
Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)
As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in. (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.) But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:
On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.
At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....
At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.
DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.
Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.
DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.
It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.
But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.
In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.
There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.
DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.
April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Saturday, April 04, 2015
"'Revenge Porn' Defendant Sentenced to 18 Years"
The title of this post is the headline of this local California article reporting on a first-of-its-kind sentencing that was completed yesterday in state court. Here are the details:
A San Diego man convicted of identity theft and extortion after posting more than 10,000 sexually explicit photos of women to his so-called "revenge porn" website was sentenced on Friday to 18 years behind bars.
The sentencing of Kevin Bollaert ended an all-day hearing where a number of victims told of the humiliation inflicted by his website. Bollaert burst into tears as he listened to testimony from his mother and victims.
The sentence was at the high end of the range; Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. Considering credits for good behavior, Bollaert could be eligible for parole after 10 years, the judge noted. Bollaert also must pay $10,000 in restitution.
It was the first case of its type in the United States, and California was the first state to prosecute someone for posting humiliating pictures online. Bollaert was convicted of 27 counts of identity theft and extortion in connection to the thousands of photos posted online. Once they were published, Bollaert would then demand hundreds of dollars from individuals to remove their photos through a second website he owned.
Prosecutors called Bollaert "vindictive" and claimed he took pleasure out of hurting his female victims with the internet being his "tool of destruction."...
The case centered on a now defunct website called YouGotPosted.com, created by Bollaert so ex-husbands and ex-boyfriends could submit embarrassing photos of victims for revenge. The photos also linked to victims’ social media accounts.
Prosecutors say those who wanted to get the pictures taken down were redirected to another one of Bollaert's sites, ChangeMyReputation.com. There, the victims were charged $300 to $350 to have their photos removed.
State law prohibits anyone from putting identifiable nude photos online after a breakup, punishable with $1,000 or six months in jail.
Friday, April 03, 2015
Should age matter at sentencing of elderly child molester?
The question in the title of this post is prompted by this local article headlined "Sentencing delayed for 89-year-old child molester in Santa Cruz County." Here are excerpts:
An 89-year-old Felton man is expected to be sentenced in May for molesting a girl younger than 9, but her supporters fear that his advanced age might play a role in a reduced sentence.
Thursday, Santa Cruz County Superior Judge Stephen Siegel delayed a sentencing for Eric Frank Greene, who already pleaded no contest to a felony charge of lewd acts with a minor. The crimes took place in 2004.... Prosecutor Rafael Vazquez said he does not believe there are other victims.
Greene faces a wide range of sentences, from probation to up to eight years in prison. “I haven’t made an ultimate decision, but I am contemplating probation,” Siegel said in court Thursday.
More than 15 supporters of the victim attended the hearing, and Siegel said he received a folder full of letters about the case from many of them Wednesday that he needed to review. Because probation is his indicated sentence, the law requires Greene to be evaluated by a psychologist and by County Probation leaders to see if he would benefit from probation....
Greene, who has no criminal record in Santa Cruz County, remained out of jail. He said in court that he has severe hearing problems, but he walked without a cane or other aid and appeared in good health.
Vazquez said outside court that Greene caused ongoing psychological harm to the victim. “It doesn’t matter that he’s that old,” Vazquez said of Greene outside court. “The fact is that he’s committed this egregious act. They want him to be held accountable just like any other person.”
Thursday, April 02, 2015
You be the judge: what state sentence for unstable 1% whose reckless driving killed young family?
This AP story from Vermont, headlined "Victims' Family at Exec's Crash Sentencing: You're Heartless," reports on the first day of a dynamic sentencing hearing in a very sad case. Here are the details:
Family members of a Vermont couple killed in a car crash were unflinching during a sentencing hearing Wednesday as they poured out their anger toward a New Hampshire man who admitted causing the wreck, which also killed their unborn fetus.
Prosecutors have said Robert Dellinger told investigators he was trying to kill himself in December 2013 when he drove his pickup truck across an Interstate 89 median and smashed into an SUV carrying 24-year-old Amanda Murphy, who was 8 months pregnant, and her fiance, 29-year-old Jason Timmons.
The Valley News of West Lebanon reported that relatives of Murphy and Timmons tore into Dellinger during the first of the two-day sentencing hearing. "I have been robbed and violated. I will never see or touch my child ever again," the newspaper quoted Timmons' mother, Debbie Blanchard, as saying, reporting that she fought back tears. "How could you be so heartless? You still have a family; you have taken mine from me."
Dellinger appeared to be deeply remorseful during the hearing, the newspaper reported. "You have my deepest, most heartfelt apology, condolences and remorse for your loss. I am so sorry," the 54-year-old Dellinger said through sobs. "My guilt and remorse will be with me forever. I ask for your forgiveness, and I pray for your healing."
Dellinger, of Sunapee, New Hampshire, was a senior vice president and chief financial officer at PPG Industries Inc. when he left in 2011 because of health problems. He also held high-level posts at Sprint Corp., Delphi Corp. and General Electric Co. He pleaded guilty in February to negligent homicide for the deaths of the couple, who were from Wilder, Vermont, and to assault for the death of the fetus. He faces 12 to 24 years in prison when sentencing resumes Thursday....
Defense lawyers have said Dellinger was suffering from delirium due to a "toxic regime" of prescription medications for multiple sclerosis and depression. In asking for a shorter sentence, they also contend he was suffering from withdrawal of a sleeping aid. Attorney Steven Gordon wrote in a sentencing brief they now know "a medical event" was the main cause "of this accident."
Dellinger has been jailed since his arrest in December. His lawyers want a sentence that would see him serve only about eight months in prison after being given credit for time already served.
Investigators say Dellinger told them that on the day of the accident he "had a disagreement with his wife and went to Vermont to drive around. He said he was very depressed and gloomy and wanted to have a car wreck and kill himself." On Wednesday, Dellinger told the court: "I have never been suicidal."
Assistant Attorney General Geoffrey Ward said in court that Dellinger's truck reached 101 mph in the seconds before the crash and was going 87 mph one second before he hit the SUV. His truck sheared off the top of the SUV. The medical examiner's report compared the injuries suffered by Murphy and Timmons to those of plane crash victims. Dellinger suffered cuts and bruises.
Tuesday, March 31, 2015
Can we save thousands of innocent lives from serious crime through . . . a tax increase?
Those who vigorously oppose various modern sentencing reform proposals are often quick to suggest that any efforts to save taxpayer monies by reducing excessive prison terms could with the potential costs of increased crime and increased victimization. I tend to resist (as does most sophisticated research) the assertion that there is a zero-sum reality to incarceration rates and crime rates, but I do share a concern that any budget-driven criminal justice reforms need to keep a close watch on what evidence and research suggests is the public safety impact of reform.
With those thoughts always in mind, I am especially encouraged by this report about new research suggestion we might be able to successfully reduce serious crimes and innocent victimization through a tax increase that could be good for state budgets. The report is titled "Researchers see significant reduction in fatal car crashes after an increase in alcohol taxes," and here are the highlights:
Increasing state alcohol taxes could prevent thousands of deaths a year from car crashes, say University of Florida Health researchers, who found alcohol-related motor vehicle crashes decreased after taxes on beer, wine and spirits went up in Illinois.
A team of UF Health researchers discovered that fatal alcohol-related car crashes in Illinois declined 26 percent after a 2009 increase in alcohol tax. The decrease was even more marked for young people, at 37 percent. The reduction was similar for crashes involving alcohol-impaired drivers and extremely drunken drivers, at 22 and 25 percent, respectively. The study was released online in the American Journal of Public Health in March and will be published in a forthcoming issue.
“Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year,” said Alexander C. Wagenaar, a professor in the department of health outcomes and policy at the UF College of Medicine. “If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”
Alcohol-related motor vehicle crashes account for almost 10,000 deaths and half a million injuries every year in the United States. Alcohol is more affordable than ever, a factor researchers say has contributed to Americans’ widespread drinking and driving. Drinking more than 10 drinks per day would have cost the average person about half of his or her disposable income in 1950 compared with only 3 percent in 2011. Alcoholic beverages have become so inexpensive because alcohol tax rates have declined substantially, after taking inflation into account....
The research team defined an impaired driver as having a blood alcohol level of less than .15 percent and an extremely drunken driver as having a blood alcohol level of more than .15 percent, which translates to roughly six drinks within an hour for an average adult. To control for multiple other factors that can affect motor vehicle crash rates, such as traffic safety programs, weather and economic conditions, the researchers compared the number of alcohol-related fatal crashes in Illinois with those unrelated to alcohol during the same time period as well as alcohol-related fatal crashes in Wisconsin, which did not change its alcohol taxes. Results confirmed that the decrease in crashes was due to the tax change, not other factors.
The larger-than-expected size of the effects of this modest tax increase may be because the tax change occurred at the same time as the Great Recession -- a time when unemployment was high and personal incomes lower, according to the study. “While our study confirms what dozens of earlier studies have found -- that an increase in alcohol taxes reduces drinking and reduces alcohol-related health problems, what is unique is that we identified that alcohol taxes do in fact impact the whole range of drinking drivers, including extremely drunk drivers,” Wagenaar said. “This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer.”
Sunday, March 29, 2015
Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion
This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:
William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone. Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.
The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment. The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.
The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.
In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.
Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.
Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011. After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.
One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."
Saturday, March 28, 2015
Notable effort by "World’s Worst Mom" to take on sex offender registries
This new Salon piece provides an interesting Q&A with notable author who has become famous for criticizing overprotective parenting and who is now criticizing what she sees as ineffective sex offender registries. The piece is headlined "Stop the sex-offender registry panic: 'A lot of those dots on the map would never hurt your kids'," and here is how the Q&A is introduced:
Lenore Skenazy came to fame for letting her 9-year-old son ride the New York subway home by himself. Or rather, she came to fame by letting him ride the subway home alone and then writing about it for the New York Sun.
The piece led to an outcry — she was dubbed “America’s worst mom” — which, of course, meant that the essay had to become a book: “Free-Range Kids, How to Raise Safe, Self-Reliant Children (Without Going Nuts With Worry).” In the five years since its publication, the book has inspired a movement among parents who want to give their children the freedom to do things like walk home from school alone. It’s a backlash to our age of “helicopter” and “bubble wrap” parenting. (If you suspect these monikers are exaggerations, consider that a Skenazy devotee recently had five police cars arrive at his house after his 10- and 6-year-old were seen walking alone.) Now Skenazy has a show on the Discovery Life channel, “World’s Worst Mom,” which sees her swooping into homes and coaching overprotective parents in a style reminiscent of the ABC reality-TV show “Suppernanny.”
Recently, Skenazy has taken on a new, albeit related, cause: reform of the sex offender registry. Clearly, this lady is not afraid of controversy. On Sunday, she held a “Sex Offender Brunch” at her house to introduce “her friends in the press to her friends on the Registry.” One of her guests was Josh Gravens, who at age 12 inappropriately touched his 8-year-old sister and landed on the registry as an adult.... The materials accompanying her press release contend that the sex offender registry, which was created to “let people identify dangerous individuals nearby…has failed to have any real impact on child safety, and may actually do more harm than good.”
She’s effectively flinging open the closet door and saying, “See? There’s no boogeyman in there” (or, if you will, flipping on the lights to offer assurance that the “monster” in the corner is actually just a lamp that made some mistakes when it was younger and means no harm). This is entirely consistent with her “Free-Range Kids” activism, but she’s taking it a step further now, moving beyond just squashing parental fears about stranger danger to helping those who have been unfairly labeled as dangerous strangers.
Wednesday, March 25, 2015
You be the judge: what federal sentence for modern sheriff playing Robin Hood?
In the legend of Robin Hood, the Sheriff of Nottingham is the tale's primary villain. But this sentencing story out of South Carolina raises the question of what federal sentence ought to be given to a local sheriff who was committing fraud as a kind of modern Robin Hood. The press report is headlined "Convicted Williamsburg sheriff asks for sentencing leniency," and here are the details:
The convicted former sheriff of Williamsburg County should be sentenced to less than the three years in prison recommended by federal officials because he succeeded despite a troubled upbringing and is being treated for a painkiller addiction, his lawyer said.
Ex-sheriff Michael Johnson faces a judge Wednesday to learn his fate after a federal jury convicted him in September of mail fraud. Prosecutors said Johnson created hundreds of fake police reports for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit card debt. The sentencing recommendation for Johnson is 30 months to 37 months in prison, according to court papers filed this week.
Johnson's attorney said that is too harsh for a man with no criminal record who cooperated with authorities. Johnson's request asks for a lesser sentence, but is not specific. Johnson has suffered from depression and anxiety the past four years. He also has migraines, high blood pressure and insomnia, lawyer Deborah Barber said in court papers.
The former sheriff also was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden, Barber said. "He resided in a poverty-stricken area in Kingstree, South Carolina, with the family not having enough money to adequately survive," Barber wrote....
Johnson joined the Williamsburg County Sheriff's Office in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010 when the former sheriff, Kelvin Washington, was named U.S. Marshal for South Carolina.
He is one of nine sheriffs in South Carolina's 46 counties to be charged or investigated while in office since 2010. Seven have pleaded guilty or been convicted, and another died while under investigation. Only two of those sheriffs so far have been sentenced to prison.
Intriguingly, this long earlier article explains some of the details of the fraud, and it suggests that sheriff Johnson may not have made any money from the scheme designed to help people to (falsely) improve their credit rating. I am disinclined to assert that sheriff Johnson is as noble or heroic as Robin Hood, but it does seem like his fraud involved trying to help some folks down on their luck by pulling a fast one on the (big bad monarchy?) credit companies. Given that the federal sentencing guidelines still call for a prison term of at least 2.5 years, I am now wondering what the real Robin Hood might have been facing in a federal fraud guideline range if he were facing sentencing today.
March 25, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack
Monday, March 23, 2015
Why passage of Prop 47 ensures California remains a hot topic in sentencing and corrections reform
This terrific new bit of reporting at The Crime Report, headlined "Prop 47: The Stormy Aftermath," details why California remains a kind perfect storm for those interesting in studying hot topics in the debates over modern sentencing reforms and the relationship between incarceration and crime. Here are excerpts from the piece:
California’s Proposition 47, passed in a referendum last November, set in motion a dramatic reversal of the state’s approach to mass incarceration. The law changed six of California’s low-level offenses from felonies to misdemeanors, and made eligible for resentencing hundreds of thousands of individuals convicted of those crimes.
Not surprisingly, it has drawn the attention of policymakers and law enforcement authorities from across the country — some of it controversial.
“This was such a big fix — being able to go from felony to misdemeanor,” said Lenore Anderson, executive director of Californians for Safety and Justice — an advocacy group that spearheaded the referendum campaign. “We’re engaging in a lot of dialogue about how to change practices, how to put a priority on public safety without relying on over-incarceration.”
But how will success or failure be measured? Four months later, the answer is still not clear — but criminal justice practitioners and advocates contacted by The Crime Report suggest that the passionate debate it fueled is only just beginning.
At a session last month at the John Jay College of Criminal Justice in New York City, Anderson told criminal justice practitioners and advocates that thousands of prisoners have been resentenced and released since Proposition 47 passed with nearly 60 percent of California voters approving the measure. The move should ultimately free up police, court and prison resources to focus on more serious violent crimes, she said....
Critics of the measure, however, warned that letting people out of jail, and removing the threat of felony charges, would lead to an increase in crime and compromise public safety. Their argument appeared to receive some support when the Los Angeles Times reported on February 21 that narcotic arrests in the city declined significantly after voters approved the bill — while property crimes increased. The story also noted: “some criminal justice experts caution against drawing conclusions.”...
One criminologist who isn’t a fan of the early assessments of Proposition 47’s impact on crime is Barry Krisberg, a Senior Fellow of the Earl Warren Institute at the University of California Berkeley Law School — and an occasional contributor to The Crime Report. “This alleged increase in property crimes, I’m not believing it,” he said in an interview. “That information isn’t even officially produced yet; it’s based on police counts, which are often inaccurate.”...
Former San Diego Police Chief Bill Landsowne, who retired in March 2014, says law enforcement organizations — in particular the state’s Police Chiefs, Sheriffs' and District Attorneys associations — are responsible for orchestrating a media push to discredit Proposition 47. “As a sitting chief it would have been very difficult for me to advocate for Prop 47,” Landsowne, a proponent of the referendum, told The Crime Report. “You don’t want to be an outlier in the process, you want to be tough. But police know we need more treatment options in the system."...
To criminologist Eugene O’Donnell a former New York City police officer, the mixed early statistical returns — and the debate surrounding them — is not surprising. “It’s absolutely premature, you can’t just snap your fingers and fix a complicated problem,” O’Donnell, a professor at John Jay College, said. “This is going to be something that has a long-term impact; trying to make a 60-day assessment is impossible.”
Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?
The provocative question in the title of this post is prompted by the notable celebrity sentencing news breaking today and reported in this extended USA Today article headlined "Darren Sharper sentenced to nine years in first of plea deals." Here are the details:
Former NFL star Darren Sharper was sentenced to nine years in prison Monday in Arizona after pleading guilty to sexual assault and attempted sexual assault in November 2013, the Maricopa County Attorney's office confirmed to USA TODAY Sports.
Sharper, 39, entered his pleas Monday in Arizona from Los Angeles, where he was expected to appear in court later in the day and enter a guilty plea in connection with two other rape allegations from 2013 and 2014.
The pleas are part of an attempted "global" plea agreement that could resolve all nine rape charges against him in four states. In addition to the charges in California and Arizona, he faces two rape charges in Las Vegas and three in New Orleans, where is expected to enter guilty pleas within the next month.
The sentences will run concurrently in federal prison, said Jerry Cobb of the Maricopa County Attorney's office. Sharper is not eligible for early release in Arizona, but will be credited for time served in Los Angeles, where he has been in jail without bail since Feb. 27, 2014.
By agreeing to the plea deal, Sharper, 39, avoids the risk of receiving an even worse punishment in the future and expensive litigation that could drag on indefinitely in four states. If convicted, he faced life in prison in Louisiana and more than 30 years in Los Angeles. For prosecutors, the plea deal avoids the risk of going to trial, where juries might be influenced by Sharper's fame and celebrity defense attorneys.
His suspected string of serial rapes ended in January 2014, when he was arrested on a suspicion of rape in Los Angeles. At the time of his first arrest, he had 20 zolpidem pills in his possession – a sleep drug known by its brand name Ambien. Sharper obtained a prescription for the drug after suffering sleep problems he attributed to his 14-year career in the NFL with the New Orleans Saints, Green Bay Packers and Minnesota Vikings, according to a workers compensation claim form he filed in 2012.
The drug can be slipped into drinks to knock out women and rape them, and that's what authorities say Sharper did time after time, according to court records. Sharper ultimately was charged with nine rapes in four states, including three in consecutive nights in two different states in January 2014.
None of the cases went to trial or even received an evidentiary hearing except in Arizona, where a judge ruled last April there was "proof evident" Sharper raped a women there in November 2013. DNA found inside the women's body partially matched Sharper's, and a witness reported waking up and seeing Sharper naked and making thrusting movements over the woman, according to a detective's testimony at the hearing.
The detective said the woman hadn't known Sharper before that night and didn't remember what happened to her after consuming a drink Sharper made her. Zolpidem was found in the cup in subsequent tests. Though Sharper's attorney noted that none of Sharper's sperm was found on the alleged victims in Arizona, the detective said he was told that Sharper had a vasectomy, which could explain the lack of sperm. The revelation caused a stir that day in Arizona, where Sharper was charged with drugging three women and raping two of them.
In Los Angeles, he was charged with drugging and raping two women – one in October 2013 and one in January 2014. In the first one, Sharper met two women at a club in West Hollywood and later invited them to his hotel room, where he offered them a drink, according to a police report of the incident filed in court....
In New Orleans, Sharper was accused of drugging and raping two women in September 2013. He also faced federal drug charges and another rape charge from Aug. 31, 2013, all of it happening just a few years after he helped the Saints win a Super Bowl in 2010.
Though the evidence against Sharper has not, obviously, been proven in court, this press account and his global plea leads me to think he truly is guilty of nine rapes. And assuming that is true, a year in prison for each of nine rapes is a pretty sweet plea deal. Ergo the question in the title of this post.
"A Commentary on Statistical Assessment of Violence Recidivism Risk"
The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:
Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)). Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations. Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.
Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly. This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.
March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, March 21, 2015
"Sentencing Enhancement and the Crime Victim's Brain"
The title of this post is the title of this interesting new article now available via SSRN authored by Francis X. Shen. Here is the abstract:
Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”? Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses. This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries?
The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain. There is no successful justification for treating mental injuries as categorically distinct from other physical injuries. There is, however, good reason for law to treat mental injuries as a unique type of physical injury. Enhancement of criminal penalties for mental injuries must pay special care to the causal connection between the offender’s act and the victim’s injury. Moreover, it is law, not science, that must be the ultimate arbiter of what constitutes a sufficiently bad mental harm to justify a harsher criminal sentence, and of what evidence is sufficient to prove the mental injury.
Thursday, March 12, 2015
US Sentencing Commission hearing on proposed fraud and other guideline amendments
Today, 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 (for the first time, I think), and can be watched at this link.
This webpage with the official agenda also provides links to the submitted written testimony of the scheduled witnesses. Most of the interesting conceptual and technical debate about guideline amendments this cycle are focused on the fraud guidelines, which have been subject to an array of criticisms due especially to their severity in cases including significant "loss" calculations. But, as the Department of Justice's written testimony (available here) makes the case that there is nothing really broken in the fraud guideline that needs to be fixed:
Lessening penalties for economic crime would be contrary to the overwhelming societal consensus that exists around these offenses. All three branches of government have expressed a belief that the sentences for fraud offenses are either appropriate or too low....
The Department also feels that penalties for economic crimes should remain unchanged and not be decreased. The proportionality established between loss and offense level is based upon numerous policy considerations, including how economic crimes should be punished and deterred. In the Department's experience and judgment, the harm from economic crimes is generally not being overstated.
In notable contrast, the written testimony of Professor Frank O. Bowman, III (available here) has a very different take on the realities of the fraud guidelines:
[F]or the last decade or so, the loudest complaint about §2B1.1 has been that it prescribes sentences which, at least for some defendants, are far too high. In particular, many observers have argued that for some high-loss defendants the guidelines now are divorced both from the objectives of Section 3553(a) and, frankly, from common sense....
Accordingly, one would have expected the proposed 2015 amendments to §2B1.1 to concentrate on the class of high-loss offenders the Commission seems to agree are over-punished by the guidelines. Curiously, however, the proposed amendments – though in several cases laudable for other reasons – would have virtually no material impact on the guidelines ranges for very high loss offenders, while producing modest guidelines reductions for significant numbers of low-to-moderate-loss offenders.
<P>I agree with the Commission’s basic conclusion that for many, perhaps most, economic offenders the Guidelines do not suggest manifestly unreasonable sentences. But I also agree with Judge Saris’s implicit conclusion that for many high-loss offenders the fraud guideline is “fundamentally broken.” The Commission doubtless believes that the modest proposals put forward in this cycle will at least ameliorate the high-loss offender problem. Unfortunately, the guidelines for high-loss offenders are so “fundamentally broken” that these modest measures will have no meaningful effect.
Tuesday, March 10, 2015
Depressing news that sentencing toughness is doing little to deter child porn offenses
Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography. The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines). In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop. And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).
I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children. Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts:
Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."
On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.
Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.
With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....
Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."
On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.
Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.
On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.
Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.
Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.
Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.
However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.
This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.
I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.
Saturday, March 07, 2015
California voters through Prop 47 help fix prison crowding problems plaguing state for decades
Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s. Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues. But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.
I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way. The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:
California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.
The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday. Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.
But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47. “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview. “The thing we are grappling with is the tremendous rise in property crime.”
Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....
Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....
In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014. Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.
Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said. “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”
Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less. Prior to the measure, the threshold for misdemeanor property crimes was $450. Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.
Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”
Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure. Most of that money is slated for mental health and substance abuse programs.
I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.
Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).
Some prior related posts on California's Prop 47 and its early impact:
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Notable pitch for California Prop 47 based in mental health concerns
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
- Intriguing review of early impact of California's Prop 47 reducing offense seriousness
- Early report on the early impact of Proposition 47 in California
March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, March 06, 2015
Highlighting that mass incarceration is "Not Just the Drug War"
For lots of good reasons, the modern war on drugs is the focal point for lots of criticisms of criminal justice systems in the United States. But this effective Jacobin Magazine Q&A with Marie Gottschalk, author of the book "Caught: The Prison State and the Lockdown of American Politics," spotlights that the US affinity for record-levels of incarceration is about a lot more than the drug war. The full piece is today's must-read, and here are excerpts from its start:
[The] new book by University of Pennsylvania political scientist Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics, makes it clear that the problem is far worse than commonly suspected, and that the reforms on the table are unlikely to even make a dent in the forces that keep millions behind bars.
Contrary to what many progressives believe, Gottschalk argues it’s not primarily the War on Drugs that’s driving this beast. Instead, it’s an all-out assault that “extends a brute egalitarianism across the board.” Jacobin editor Connor Kilpatrick recently got a chance to interview Gottschalk.
Q: One of the most shocking stats in your book is that simply rolling back punishments for violent offenses to their 1984 levels in 2004 would have done more to lower the incarceration rate — a cut in state prison rates of 30 percent — than simply ending the drug war.
A: The intense focus in criminal justice reform today on the non-serious, non-violent, non-sexual offenders — the so-called non, non, nons — is troubling. Many contend that we should lighten up on the sanctions for the non, non, nons so that we can throw the book at the really bad guys. But the fact is that we’ve been throwing the book at the really bad guys for a really long time.
Legislators are making troubling compromises in which they are decreasing penalties in one area — such as drug crimes — in order to increase them in another area — such as expanding the use of life sentences. In doing so, they’re also fostering the mistaken idea that it is easy to distinguish the non, non, nons from the really bad guys.
Thursday, March 05, 2015
Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row. Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.
As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:
Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.
It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle. It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.
Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days. The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....
Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated. It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.
The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October. Prosecutors say they don't regret trying again to send Arias to death row. Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."
Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition." She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive. She did more media interviews after the jury convicted her of murder.
Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.
The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.
I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row." After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.
Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems. The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona. As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000. I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack
Monday, March 02, 2015
Resentencing on tap in Ohio beard-cutting federal assault cases
As reported in this local article, headlined "Judge to re-sentence defendants in Amish beard-cutting case," today brings another sentencing proceeding in a high-profile civil-rights case prosecuted in Ohio's federal courts. Here are the basics:
Federal prosecutors believe that the 16 Amish people who will be re-sentenced by a federal judge this afternoon for a series of beard-cutting attacks in 2011 still have not shown that they understand the harm that they caused.
A memo filed Friday by Kristy Parker, deputy chief of the civil rights division of the Department of Justice, reiterated that U.S. District Judge Dan Polster should give Bishop Sam Mullet and his followers the same sentences he gave them in February 2013, even if they do not stand convicted of carrying out religiously-motivated hate crimes because of an appellate court's decision.
"Simply put, there has also been no indication over the past two years that the time the defendants have served up to this point has in any way caused them to re-evaluate the propriety or the gravity of their behavior other than their acknowledgment that the government takes the matters seriously (even if they do not) and their obvious unhappiness at having been caught and punished," the filing says....
Polster will re-sentence all 16 defendants -- who come from the small farming community of Bergholz in Jefferson County -- at 1:30 p.m. at the federal courthouse in Cleveland. Eight of those defendants have already served out their original sentences, and Polster said in an email to attorneys last week that he intends to sentence them to time served.
At the original sentencing, the judge handed down prison terms ranging from a year and a day to 15 years for Mullet, the community's leader. Prosecutors are expected to ask for the same sentences today because Polster's original ones were lower than those recommended by the U.S. probation office. Defense attorneys are asking the judge to sentence the defendants to time served and to release the eight who remain in prison.
The defendants are members of a breakaway sect of the Amish community made up of 18 families. They were convicted of multiple crimes in September 2012 for carrying out five nighttime raids. In the attacks, members of the community rousted five victims out of bed and chopped off their beards and hair with horse mane shears and battery-powered clippers. The attackers documented the attacks with a disposable camera....
A sentencing memo filed for Mullet says that its unlikely that Mullet would ever do something similar again, and that the Bergholz Amish community is still shunned by other Amish communities because of the case and its surrounding publicity.
In a memo filed Friday, prosecutors say that "it is the defendants themselves who created these circumstances through their own lawless conduct, yet they continue to blame the government and their properly imposed prison sentences for the harms they feel they have suffered. "The defendants' sentencing memoranda leaves the impression that they are the victims in this case, not the people they violently assaulted during nighttime raids and orchestrated attacks," the memo continues.
Some related prior posts:
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
- Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
- Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences
Friday, February 27, 2015
How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?
The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R). Here are excerpts from the press release:
The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.
The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....
The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.
“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”
There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.
February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, February 25, 2015
Passage of Smarter Sentencing Act is reportedly "very important" to Prez Obama
This notable new USA Today piece, headlined "Bipartisan sentencing bill gets White House support," reports that President Obama indicated at a meeting yesterday with congressional leaders that he was interested and eager to have the Smarter Sentencing Act become law. Here are the details:
President Obama is throwing his support behind a bipartisan proposal to change the nation's sentencing laws by cutting many mandatory minimum sentences in half. That commitment came out of a meeting with 16 members of Congress at the White House Tuesday night, called by the president to gather their ideas on how to overhaul the criminal justice system.
Members of Congress who attended said the main topic of conversation was the Smarter Sentencing Act, a bill sponsored by Rep. Raul Labrador, R-Idaho, that would reduce mandatory minimum sentences for non-violent drug offenders.
Obama supported a similar bill in the last Congress, but the current proposal goes even further. Mandatory life sentences would be reduced to 20 years — effectively cutting life sentences in half because the current life sentence averages 40 years.
Another change: Those convicted of importing drugs into the United States would not be eligible for the reduced sentences unless they were merely couriers whose role was limited to transporting or storing drugs or money.
Sen. Mike Lee, R-Utah, who has introduced a companion bill in the Senate, said Obama "focused specifically" on the Smarter Sentencing Act "and his desire to have it passed."
"It was showing us that this is very important to him, and he has the resources of his administration that he's been willing to put out there," Lee told KSL Radio in Salt Lake City Wednesday.
White House spokesman Frank Benenati said Wednesday that the White House is still reviewing the text of the legislation, but that "it certainly appears" that the Labrador proposal meshes with the president's aims to "make our communities safer, treat individuals more justly and allow more efficient use of enforcement resources."
Obama has signaled his support for sentencing changes as recently as Monday, when he praised governors who had signed similar bills at a White House dinner. "Last year was the first time in 40 years that the federal incarceration rate and the crime rate went down at the same time," Obama said. "Let's keep that progress going, and reform our criminal justice system in ways that protect our citizens and serves us all."
Labrador said that's an important point for Obama to make. "The main obstacle is the perception that sentencing reform will lead to more crime. And I think the opposite is true," he said. "The concern is that we want to continue to be tough on crime, but we want to be smart on crime."...
House Judiciary Chairman Bob Goodlatte, R-Va., who also attended the meeting with Obama, would not comment on the meeting. He's been cool to sentencing changes in the past, but Sen. Cory Booker, D-N.J., said he thought Goodlatte seemed "remarkably open" to the issue.
SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!
I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices. This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here). Yates has produced this remarkable and unprecedented combination of opinions and votes:
GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.
Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:
John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...
Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.
Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.
And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:
If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.
Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above). And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.
Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."
Monday, February 23, 2015
SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells
I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.
I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms. In my amicus brief, I had these concluding sentiments about the Young case and its implications:
The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage. Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.” Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....
[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).
Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel). Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities. I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front. Grrr.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
- Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells
February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Urging more media coverage of the "truly guilty and violent"
The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.
The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts. Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.
When we do write about the guilty, we prefer they be nonviolent offenders. We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.
We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.
But this means we neglect much that is immensely significant. There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections. That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.
Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.
Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.
There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.
Sunday, February 22, 2015
Early report on the early impact of Proposition 47 in California
This new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November. The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:
In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.
On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.
Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.
Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.
Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.
"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."
The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.
Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.
Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.
Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.
Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."
The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.
Saturday, February 21, 2015
"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecutions"
The title of this post is the title of this new paper by Michael Patrick Wilt now available via SSRN. 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.
Friday, February 20, 2015
Virginia's former first lady facing sentencing after hubby got only two years
Today brings another high-profile white-collar sentencing in the federal court in Virginia as Maureen McDonnell, former first lady, is to come before the same judge who sentenced former Virginia Gov Robert McDonnell to two years' imprisonment last month. Helpfully, Randall Eliason at the Sidebars Legal Blog provides this preview, titled "What to Expect at Maureen McDonnell’s Sentencing." Randall provides this refined summary of the guideline basics and the parties' recommendations:
The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.
In addition, the Washington Post has this article headlined "Everything you need to know about Maureen McDonnell’s sentencing." But that piece does not set out these guideline basics, so the headline is not accurate for hard-core federal sentencing geeks like me.
UPDATE: As this Washington Post piece reports, "Maureen McDonnell was sentenced Friday to a year and a day in federal prison after an emotional, hours-long hearing in which the former first lady of Virginia apologized publicly for the first time since she and her husband were accused of public corruption."
As all competent federal sentencing lawyers know, a sentence of a year and a day for the former first lady is actually better than a sentence of one year. That extra day makes her formally eligible to earn good-time credit, which nearly all non-violent offenders earn. So, practically, Ms. McDonnell is now likely to be released from federal custody after only 10.5 months in the federal graybar hotel.
February 20, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack
Wednesday, February 18, 2015
"The Divisibility of Crime"
The title of this post is the title of this notable new article by Jessica Roth discussing some of the Supreme Court's recent Armed Career Criminal Act jurisprudence. Here is the abstract:
Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.