Monday, May 26, 2014

"Disarming the Dangerous: Preventing Extraordinary and Ordinary Violence"

The title of this post is the title of this new paper by Mary Fan now available via SSRN. Though posted on line a few weeks ago, this piece strikes me as distinctly and depressingly timely in the wake of the mass shooting in California a few days ago. Here is the abstract:

Recent mass shootings at Navy Yard, Newtown, Aurora and elsewhere have jolted Congress and the states into considering gun violence prevention.  More than 1,500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary school children and six adults.  Current legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces.  In the states, the most successful type of legislation involves firearms restrictions for the mentally ill.  In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines.  While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides and why do the law’s current screens miss them?

This article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens.  Presenting data on the most prevalent place of shooting, victim-shooter relationship, and the shooter’s prior history, the article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses “ordinary” violence.  By ordinary violence, this article means violence that is often viewed as mundane, such as altercations between family members, friends and intimates in the home.  Many perpetrators of firearms homicide have a history of such prior events -- yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions.  Based on these findings, the article discusses how discretion in dealing with “ordinary violence” can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet for new gun laws.

May 26, 2014 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Wednesday, May 21, 2014

Should I be hopeful Amy can now recover more restitution after major child porn bust in NYC?

The question in the title of this post is my (perhaps weak) effort to put some kind of positive spin on this depressing new story from CNN headlined "Cop, rabbi, scoutmaster among arrests in child porn bust."  Here are just some of the ugly basics:

They are people children are supposed to trust: A New York Police Department officer, a Fire Department of New York paramedic, a rabbi and a scoutmaster were among more than 70 people arrested in a major child porn bust, authorities said Wednesday.

One of those arrested -- a supervisor with the Transportation Security Administration -- allegedly traveled to the Dominican Republic to have sex with children, a law enforcement official said. He allegedly made more than 50 trips there.

The investigation, involving agents from U.S. Immigration and Customs Enforcement as well as New York authorities, began as part of an undercover operation into peer-to-peer networks, authorities told reporters Wednesday.  The suspects, who do not appear to know one another, were able to search files using graphic terms and descriptions. Software continuously scanned files and automatically uploaded images to personal computers, laptops and mobile phones.

Special Agent in Charge James Hayes, head of Homeland Security Investigations New York, called the arrests the largest enforcement operation in New York "targeting predators (who) possess, produce or distribute sexually explicit images of children." The activity, he said, has "reached epidemic proportions."

"The backgrounds of many of the individuals ... is shocking," Hayes said. "These defendants come from all walks of life ... This operation puts the lie to the classic stereotypical profile that child predators are nothing more than unemployed drifters. Many of the defendants are, in fact, well-educated and successful in private and professional lives. They work as registered nurses, paramedics, caretakers for mentally ill adults, computer programers and architects."

The continuing operation resulted in 71 arrests -- including one woman -- and the seizure of nearly 600 devices, including desktop and laptop computers, tablets, smartphones and thumb drives with tens of thousands of sexually explicit images and videos of children, Hayes said.

The pornographic images of children were shared at no charge, authorities said. About a third of the suspects remain in custody, and the others were released on bonds ranging from $30,000 to $500,000. Hayes said the January arrest of Brian Fanelli, chief of the Mount Pleasant Police Department in upstate Valhalla, New York, on child pornography violations helped lead to the other defendants.

A few months ago, I asked in the title of this post a serious question that comes to mind now again: "Just how many prominent, successful men are child porn fiends?".  As the title of this post suggests, following the Supreme Court's messy "split-the-difference" approach to child porn restitution in its recent Paroline ruling (basis here), I am hoping a silver lining to this dark cloud might be that CP crimes committed too often by persons "well-educated and successful in private and professional lives" might now mean more restitution getting paid to the unfortunate victims of these crimes.

A few (of many) prior posts on Paroline and child porn issues:

May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (11) | TrackBack

Tuesday, May 20, 2014

Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers

A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):

A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted.  That’s because officials in Round Rock have charged him with a first-degree felony.

It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....

The 19-year-old is accused of making and selling pot brownies.  He’s charged with a first degree felony.  “Five years to life? I’m sorry.  I’m a law abiding citizen.  I’m a conservative. I love my country.  I’m a Vietnam veteran, but I’ll be ****ed.  This is wrong. This is ***n wrong!” the father said.

Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.

The former high school football player has a clean record.  The charge is so severe because the recipe includes hash oil.  That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.  “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.

KEYE reached out to the district attorney to ask how they’re going to prosecute the case.  Our call has not yet been returned....

Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.

Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.

May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Occupy Wall Street activist sentenced to occupy jail for three months

CecilyAs the New York Times reports here, a "woman whose assault case had become a cause célèbre, first among Occupy Wall Street supporters and then expanding well beyond the movement, was sentenced to three months in jail on Monday, as a judge rejected calls for her immediate release." Here is more about a high-profile state sentencing that occurred yesterday in Manhattan:

The woman, Cecily McMillan, 25, a graduate student at the New School and a volunteer labor organizer, was convicted two weeks ago of assaulting a police officer at Zuccotti Park in Manhattan in 2012.  Before the sentence was delivered, Ms. McMillan remained mostly defiant, even as she characterized the encounter with the officer as “an accident.”.....

But Justice Ronald A. Zweibel, who had remanded Ms. McMillan on May 5 after the four-week trial, imposed the jail sentence that prosecutors had requested, rather than release her on probation, as her lawyers had urged.  She could have faced a maximum of seven years for the second-degree assault.  “A civilized society must not allow an assault to be committed under the guise of civil disobedience,” Justice Zweibel said....

Upon her conviction, Ms. McMillan’s supporters wrote scores of letters to Justice Zweibel, urging him to be lenient.  Five City Council members delivered the same message on the steps of City Hall, and the Russian activists Pussy Riot, who were recently imprisoned for criticizing President Vladimir Putin, visited her on Rikers Island and called for her release. An online petition calling for leniency garnered 160,000 signatures....

Before sentencing, Shanda Strain, an assistant district attorney, said Ms. McMillan deserved a three-month stay in jail because she had falsely accused Officer Bovell of grabbing her breast, lying under oath “to avoid responsibility for her actions.”

“This trial was not a referendum on a large social cause or movement, though the defendant tried and continues to try to make it just that,” Ms. Strain said. Then she added, “In essence, she has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.”...

Ms. McMillan’s lawyer, Martin Stolar ... told the judge that the bruises and mental trauma that Ms. McMillan had suffered during her arrest were punishment enough.  “You touch a police officer and get the hell beat out of you,” he said outside court.  “That’s what happened to her. That’s enough of a deterrent.”

Ms. McMillan also received five years of probation, and was ordered to undergo a mental-health evaluation and treatment.  Mr. Stolar said he had filed a notice of intent to appeal the verdict, and had asked that his client be granted bail pending the appeal.

May 20, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

Sunday, May 18, 2014

Identifying better DOJ prosecutorial priorities than low-level drug crimes

Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions.  Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders."  By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.

Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in.  Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin.  I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers.  And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.

What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin?  Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:

A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again.  Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating.   A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ:  "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already.  There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up.  As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"

I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars.  Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others.  Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.

In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars.  And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.

Some prior posts about the SSA and debates over federal sentencing reform:

May 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, May 16, 2014

Federal judge splits the difference in sentencing former SAC money manager to 3.5 years

As reported in this Wall Street Journal article, a federal district judge in a high-profile white-collar sentencing today imposed a prison term roughly half-way between what federal prosecutors and the defense sought.  Here are the basics:

A federal judge sentenced former SAC Capital Advisors LP portfolio manager Michael Steinberg to three and a half years in prison Friday, saying he hoped Wall Street would learn from this case. The term was well below what prosecutors had sought.

U.S. District Judge Richard Sullivan called the former senior SAC employee "a basically good man," citing evidence of his character supplied in 68 letters sent by his family and friends. But he also pointed to the seriousness of Mr. Steinberg's insider trading.  "They are crimes that go to the heart of living in an honest society and having a market system," he said during a hearing in Manhattan federal court.  Wall Street, he hoped, would "derive lessons."

Mr. Steinberg, 42 years old, is SAC's most senior former employee to be convicted of insider trading.  Prosecutors had asked for a sentence of 5¼ to 6½ years to send a strong deterrent message to the market.  Mr. Steinberg's lawyers had requested less than half that amount.

Mr. Steinberg was convicted in December on four counts of securities fraud and one count of conspiracy for trading on confidential information, handing prosecutors the first verdict from a federal jury to back up their allegations that there was insider trading at SAC.  There is a chance Friday's sentence won't stick.  A pending appeal in a related insider-trading case could bolster Mr. Steinberg's chances to overturn his conviction.

May 16, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, May 15, 2014

Intriguing Second Circuit opinion concerning which priors trigger 10-year child porn mandatory

Today in US v. Lockhart, No. 13-602 (2d Cir. May 15, 2014) (available here), a Second Circuit panel resolves a notable statutory question concerning what prior sex offenses serve as predicates triggering a 10-year mandatory minimum prison term for a child porn possession offense.  Here is how the opinion in Lockhart starts along with a later paragraph highlighting why this issue could perhaps get Supreme Court attention:

In this case, we must decide whether a sentencing provision that provides for a ten‐year mandatory minimum term of imprisonment if a defendant was previously convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252(b)(2), requires that an “aggravated sexual abuse” or “sexual abuse” conviction involve a minor or ward, or whether only “abusive sexual conduct” is modified by the phrase “involving a minor or ward,” such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court’s imposition of a ten‐year sentence on Defendant‐Appellant Avondale Lockhart....

Looking at § 2252(b)(2) as a whole, we find, as a number of other circuits have explained, that “it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law.” United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011).... This reasoning compels us to conclude that “involving a minor or ward” modifies only prior state convictions for “abusive sexual conduct,” not those for “sexual abuse” or “aggravated sexual abuse,” each of which would constitute a predicate federal offense if committed against an adult or a child.

We acknowledge that the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase “involving a minor or ward” modifies all three categories of state sexual abuse crimes.  However, the Eighth and Tenth Circuits have drawn this conclusion without elaborating on their reasoning. Indeed, these circuits appear merely to have assumed that a prior state‐law sexual abuse conviction requires a minor victim for purposes of the sentencing enhancement, an assumption that made little difference in those cases since the predicate violations at issue involved minor victims.... The Sixth Circuit has reached this conclusion most explicitly, although it did so because it found that another panel of that court had “already considered the proper construction of the statutory language at issue,” and that that prior decision bound the current panel, even though the earlier opinion did not engage in any express analysis of the statutory language.  United States v. Mateen, 739 F.3d 300, 304–05 (6th Cir. 2014) (citing United States v. Gardner, 649 F.3d 437 (6th Cir. 2011)), reh’g en banc granted, opinion vacated (Apr. 9, 2014).  We are not compelled to follow such unexplored assumptions in coming to our conclusion here.

May 15, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, May 14, 2014

"Federal Judges Are Cutting Rich Tax Cheats Big Sentencing Breaks"

The title of this post is the headline of this lengthy and interesting new piece at Forbes by Janet Novack.  Here are excerpts:

Increasingly, federal judges are going easy on tax cheats, or at least easier than the U.S. Sentencing Commission’ s guidelines say they should. The trend has been quietly building since 2007, but was given a high profile Forbes 400 face in January when a Chicago federal judge let billionaire H. Ty Warner off with probation for hiding as much as $106 million in UBS AG and a smaller Swiss bank for more than a decade and evading at least $5.5 million in tax on his secret accounts.  According to the sentencing guidelines, the 69-year-old Warner, who made his fortune by creating Beanie Babies, should have gotten 46 to 57 months in the federal pen.  Prosecutors have appealed Warner’s sentence, asserting, among other things, that the judge was unreasonably impressed by his “not so extraordinary” charity and by gushing letters from employees, and business associates....

[I]n 2005, the Supreme Court ruled in U.S. v Booker that the guidelines were merely advisory.  Subsequent Supreme Court and appellate decisions have made it clear that trial judges have broad discretion to depart from the guidelines and will only be overturned if they’ve failed to properly consider the guidelines or their decision is clearly unreasonable.  “Once they make the noises about calculating the guidelines, they can come up with their own numbers, and they can base it on anything they want,” says Scott A. Schumacher, a professor at University of Washington Law School who has written a new paper on tax-sentencing post-Booker that is being published in the Villanova Law Review.  While the percentage of all sentences that fall within the guidelines has steadily declined since Booker, the change in tax sentences has been particularly dramatic, he adds.

For example, in fiscal 2013, judges gave below guideline sentences, without buy-in from prosecutors, to 45% of those sentenced for tax crimes, but just 28% of those sentenced for embezzlement; 26% of those sentenced for fraud; and 22% of those sentenced for forgery or counterfeiting. (Another 20% of tax offenders got sentence reductions which prosecutors sponsored, usually as a reward for providing “substantial assistance” to the government.)

While the light sentencing of some offshore cheats has gotten attention, the larger leniency-for-tax crimes trend has been mostly obscured by Internal Revenue Service reports, which show the average prison term for “tax and tax related crimes” rising from 21 months in 2004 to 31 months in 2013.  The IRS numbers, however, are skewed by the long prison sentences (some more than 10 years) being meted out to those convicted in the recent epidemic of identity theft refund fraud — a crime Kathryn Keneally, U.S. Assistant Attorney General for the Tax Division described at an American Bar Association Tax Section meeting last week as “more like street crime.”

The Sentencing Commission’s statistics, by contrast, count only pure tax crimes and not those in which identity theft, public corruption, drug dealing or some other charge is considered the primary offense and tax evasion is thrown in.  By the USSC’s figuring, the average sentence for a tax convict last year was just 14 months, with a median of 12 months.  In those cases where sentencing judges handed out a downward departure citing the Booker decision, the commission’s data shows, the median sentence was cut by 78.5%; in such cases the most lenient within-guideline sentence would have been a median of 16 months and the lucky convicts got a median sentence of just four months. (A side benefit: such short sentences can be served in community facilities, instead of the federal pen.)

Surprisingly, the average sentence for tax crimes hasn’t changed much, even as the percentage of tax cheats getting a sentencing break has risen.  The likely explanation is found in the way the sentencing guidelines work, ratcheting up prison terms as the amount of tax the government was cheated out of rises.  As prosecutors have focused more on wealthier tax cheats and bigger dollar cases involving both onshore and offshore evasion, the sentences tax offenders are supposed to get have risen too. Last Friday, for example, a federal judge sentenced Patricia Hough, a 67-year-old Fort Myers, Fla. psychiatrist, to 24 months in jail.  That might sound like a lot, except her guideline sentence was 80 to 100 months....

These days, sentencing judges routinely give lip service to that need for general deterrence, but still seem sympathetic to the argument that by being prosecuted, individual defendants have already suffered more than their chiseling peers.  In offshore cases, defendants’ lawyers never fail to point out that tens of thousands of people (the last count released by the IRS was, 43,000) with undeclared foreign accounts have escaped prosecution through the Offshore Voluntary Disclosure Program....

Sentencing judges also tend to be sympathetic to other arguments typically made by wealthy and successful convicts: that they have given a lot to charity; have already been publicly humiliated; have paid heavy fines (in Warner’s case a $53 million penalty for failing to file required reports of Foreign Bank and Financial Accounts ); and even that they are simply too valuable as either job creators or community volunteers to be sitting in jail. Chicago Federal District Court Judge Charles P. Kocoras, before giving Warner probation, cited all those considerations....

[S]ince the Supreme Court’s Booker decision, only one tax sentence has been reversed on appeal. In that case a sentencing judge gave probation to Frederick L. Engle, who had evaded his taxes for 16 years using shell corporations.  According to sentencing guidelines, he should have gotten 24 to 30 months.  The sentencing judge’s stated reason for the leniency was that Engle, a high earning sales rep for shoemaker Nine West who had relationships with Wal-Mart, Target and J.C. Penny, would be able to earn good money to pay back the IRS if he was kept out of jail and allowed to travel abroad.

In overturning the sentence, a three judge panel of Fourth Circuit Court of Appeals wrote: “Reduced to its essence, the district court’s approach means that rich tax-evaders will avoid prison, but poor tax-evader will almost certainly go to jail. Such an approach, where prison or probation depends on the defendant’s economic status, is impermissible.”

After Engle failed to appear for his new sentencing hearing and continued to evade tax, he was sentenced in absentia to 60 months in jail.  When U.S. Marshals caught up with him, he got an additional year for failure to appear.  Now 73, Engle is serving his time at the Butner, N.C. federal correctional institution and is not scheduled for release until October 2015.

May 14, 2014 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

SessionsThere are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here).  Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).

But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act.   Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."

But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."

Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA.  Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences.  However, back in  2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims."  I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."

Some prior posts about the SSA and debates over federal sentencing reform:

May 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Sunday, May 11, 2014

Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable

As detailed in this Chicago Tribune article, federal prosecutors have filed their merits brief with thr Seventh Circuit complaining about the probation sentence given to the billionaire creator of Beanie Babies after he pleaded guilty to hiding at least $25 million from U.S. tax authorities in Swiss bank accounts.  Here are some details of the filing:

The U.S. government on Friday appealed the sentence of billionaire Ty Warner, the Beanie Babies creator who recently received two years' probation for tax evasion.

In January, U.S. District Judge Charles Kocoras rejected calls from prosecutors that he sentence Warner to a prison sentence of at least a year for failing to pay income taxes on millions of dollars that he hid for years in Swiss bank accounts. Kocoras said he was swayed by letters detailing Warner's acts of kindness in giving him probation instead of prison.

The government's appeal on Friday said Kocoras gave too much weight to Warner's charitable acts, considering his wealth and that many of the letter writers were current or former employees....

In a court filing on Friday, prosecutors said the district court judge's ruling was "substantively unreasonable" and that Warner's sentencing should have served as a punishment and deterrence. It also said Warner's sentence provided "unwarranted sentencing disparities" as others have been treated more harshly for tax evasion....

It also said Warner's claim that he donated $140 million to charity was overstated because the figure included the retail value of Beanie Babies he had donated. A more accurate reflection of the cost would have been $36 million, the government said. The government also estimated that Warner's charitable contributions amounted to 2 percent of his net worth -- "a not extraordinary" amount.

A spokesman for Warner said it was unfortunate that "the government is spending resources to challenge a well-reasoned and careful sentence issued by a well-respected judge."

The government filing said the founder of Ty Inc. hid $100 million in Swiss bank accounts, refused to report $24 million of it to the Internal Revenue Service, and evaded $5.5 million in taxes. At the time of his sentencing, his net worth was $1.7 billion.

Critically, though not mentioned in this article and likely not stressed in the government's appeal, in In addition to probation, Judge Kocoras ordered Warner to do 500 hours of community service at Chicago high schools, and Warner had already previously agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million.  Though the absence of any prison time surely bothers the feds and has prompted this appeal, the fact that Warner's foolish bit of tax dodging has already seems to have cost him more ten times the taxes he sought to evade strikes me as punishment enough.  For these sort of economic crimes, I tend to think an expensive economic punishment is more efficient and effective than prison time.  But, obviously, federal prosecutors do not agree.  And it will be interesting to see what the Seventh Circuit will have to say ultimately.

Prior related posts:

May 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (5) | TrackBack

Saturday, May 10, 2014

"Drugs and Violence"

The title of this post is the title of this notable and important new paper I just noticed via SSRN authored by Shima Baradaran. Here is the abstract:

The war on drugs has increased the United States prison population by tenfold.  The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked.  Politicians, media, and scholars continue to advocate this view either explicitly or implicitly.

This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence.  It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.

In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans.  In short, if drugs do not cause violence — and the empirical evidence discussed in this Article suggests they do not — then America needs to rethink its entire approach to drug policy.

May 10, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Friday, May 09, 2014

Applying strict scrutiny, Louisiana Supreme Court upholds facial constitutionality of criminalizing gun possession with illegal drug possession

Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge.  Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional.  Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree.  Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

May 9, 2014 in Drug Offense Sentencing, Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 05, 2014

New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.

May 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4) | TrackBack

Friday, May 02, 2014

Family of medical marijuana patients in Washington turn down plea and set up notable federal trial

HarveysThis lengthy new Huffington Post article, headlined "This Entire Family Of Medical Marijuana Patients Could Go To Prison For Growing Pot," spotlights a developing federal criminal case that seems likely to provide a notable criminal justice setting for the on-going national debate over marijuana law, policy and reform. Here are the basics:

Four family members and a close family friend in a rural town in northeastern Washington are facing years in federal prison for growing marijuana for their personal medical use.

Larry Harvey, 70, his wife Rhonda Firestack-Harvey, 55, their son Rolland Gregg, 33, and Rolland's wife Michelle, 35, as well as close family friend Jason Zucker, 38, claim they were individually growing 74 marijuana plants for their own medical use at the Harveys' rural home near Kettle Falls, Washington, as is their right under state law.

"There is no hidden agenda here," Rhonda said Thursday in a statement to the media. "My husband and I are retired, but work hard to live a peaceful, sustainable life in the northeast Washington wilderness.  We both have serious health issues and were told by our doctors that medical marijuana could help. All five of us have qualifying conditions, actually, and the garden was below the limit of 15 plants per patient."

"It's outrageous that the federal government is wasting money prosecuting five patients who were in total compliance with state law," Rhonda added.  The Harvey home was first raided by state authorities in August 2012 after two flybys from Washington state's Civil Air Patrol -- the official civilian auxiliary of the United States Air Force -- reported an apparent marijuana grow near the Harvey residence.

On August 9, according to a motion filed by the Washington state U.S. attorney's office, state law enforcers raided the Harvey property and found 74 plants growing near the home. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. The authorities did not press charges or seize any other assets.

However, days later, on August 16, federal authorities showed up with a new warrant and conducted a more comprehensive raid.  At the time, authorities were enacting a widespread crackdown on medical marijuana providers -- an effort that extended into states like California and Colorado -- at the directive of the Obama administration. During the Aug. 16 raid, Drug Enforcement Administration agents seized the Harveys' remaining marijuana plants, as well as about five pounds of raw cannabis and some marijuana-infused edibles from the freezer.  The feds also seized a 2007 Saturn Vue, $700 in cash, a computer, a motorcycle and an ATV, along with the family's legally owned firearms.

"This is not the kind of spectacular haul that the DEA is typically called in for," the family's attorneys wrote in a letter to Attorney General Eric Holder this February urging him to reconsider the charges. "Just the opposite, the evidence seized is consistent with the type of strict medical dosage that occurs with a doctor's supervision."

In 2013, the five patients were indicted by the Eastern Washington attorney general's office. According to the defendants' attorneys, all of them were growing cannabis in compliance with state law. Still, the federal government has charged each of them with six felonies apiece, including manufacturing, possession and distribution of marijuana, as well as the possession of a firearm in furtherance of drug trafficking, according to the indictment.

Because their trial is being held in federal court, it may not be enough of a defense for the family to argue that they were compliant with state law. In a motion filed Wednesday, Michael Ormsby, the U.S. attorney in eastern Washington state involved in the case, requested that "any evidence of medical purposes as well as the defendants' belief that they were lawfully engaged in marijuana cultivation" be inadmissible in court. Ormsby argued that the family's purpose for growing the marijuana is not the issue. Rather, he said, the "knowing or intentional manufacturing of marijuana" is all that matters in this case....

During pre-trial hearings for the case this week, the family unanimously rejected the plea deals offered by the prosecuting attorneys that would have reduced their maximum sentences to just three years behind bars. Without the plea deal, their maximum sentences range from up to 40 years to life in federal prison.

Washington state law allows for licensed medical marijuana patients to grow up to 15 plants and be in possession of up to 24 ounces of usable cannabis. The law also says that no more than 10 qualified patients can participate in a single collective garden. The patients can grow up to 15 plants each, but the garden cannot exceed 45 plants.

Federal authorities are charging the Harvey family with growing "100 or more" marijuana plants -- a charge that dramatically increases related fines and prison sentencing -- alleging that the family had grown a crop in 2011 similar in size to the one seized in the raids the following year. The charge is based on "numerous" photos, found on a seized computer from the residence, that allegedly depict the defendants in the grow at the same location in 2011, according to the motion filed by the U.S. attorney's office....

In their letter to Holder, the defendants' attorneys argued that there is no proof these five people are "perceived to be violent in any way," and say that the firearms had "absolutely nothing to do with the cultivation of cannabis." "This is a mom and pop on a family homestead near a National Wildlife Refuge in the Northeastern corner of Washington, where the nearest town is 10 miles in any direction," the attorneys wrote.

The family's attorneys argue that there is an "equal justice disparity" created by federal drug laws that directly contradict state laws in Washington, where medical marijuana has been legal for well over a decade. "In the very city where the Harvey family is set to stand trial, an ordinance was recently passed to establish groundbreaking licensing requirements for aspiring entrepreneurs in the existing medical marijuana field, as well as those planning to enter the emerging [recreational] marketplace," the attorneys wrote in their letter to Holder. "These conflicting realities cannot co-exist."...

Now that all five defendants have rejected the plea deals, their federal trial is expected to begin later this month. An official from the U.S. attorney's office in eastern Washington familiar with the matter said that the office cannot comment on ongoing cases.

For individuals and groups concerning about excessive federal government involvement in the activities of individuals out West, the Harvey family would seem to be a much more sympathetic cause célèbre than Cliven Bundy. But I have a feeling Sean Hannity and some of the folks quick to back Bundy in his stand-off with the feds are not likely to be championing family values and states' rights in this setting. And, sadly, that seems too bad and a telling indication that political principles may only go so far once pot is involved.

May 2, 2014 in Criminal justice in the Obama Administration, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 29, 2014

Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion

April 29, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 28, 2014

Curious SCOTUS cert calls in criminal cases continuing, though overcriminalization now on docket

Court-yates_0056I was lamenting earlier this month in this post that the Justices seem to have relatively little interest in big criminal justice issues of late (especially on sentencing fronts), though I suppose I could have reconsidered this idea after SCOTUS last week took up two new criminal cases as reported here.  Today, via this new order list, SCOTUS showcases some more curious cert pool splashing around as detailed in this post at SCOTUSblog:  

The Court on Monday granted review in two new cases; both will be decided next Term. One seeks clarification of what a home loan borrower must do in order to get out from under the mortgage because the lender allegedly failed to provide full disclosure of the loan terms (Jesinoski v. Countrywide Home Loans).

The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal investigation. At issue in Yates v. United States is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish. A fisherman convicted of destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action. The Court limited its grant to the first question raised in the petition.

The ongoing mystery of what the Court is doing with a California murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday. The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased. Presumably, that case will be listed again this week, for a twenty-first time. It has been put before the Justices in every scheduled Conference since September.

The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home. The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense....

In accepting review of the Yates case, the Court will be spelling out the scope of a law passed in the wake of the corporate scandals, particularly involving Enron Corp. A provision of that law made it a crime to interfere with a federal investigation by destroying, hiding or altering vidence. The law forbids destroying, multilating, altering, concealing or falsifying “any record, document or tangible object,” with the intent to impede or obstruct a federal investigation.

The case involves John L. Yates, a Floridian who captained a commercial fishing vessel, Miss Katie, working the waters of the Gulf of Mexico. An inspector boarded the vessel in 2000 to check for compliance with fishing regulations. While on board, he saw several red grouper fish, which appeared to him to be smaller than the 20-inch minimum size for taking that species. He measured them, and found 72 that he deemed were too small.

Yates and his crew were told to return to port, and not to disturb the catch. Yates later was charged with violating the law against destroying evidence, for allegedly ordering a crew member to throw the undersized fish overboard. The crew then replaced the discarded fish with other red grouper.

At his trial on criminal charges, including destroying evidence, Yates’ lawyers contended that the law against destroying evidence was designed only to deal with documentary evidence, and that its coverage of “tangible objects” meant to apply on to the same category. That argument failed in the trial court, and Yates was convicted of violating that provision by ordering the casting overboard of the small red grouper. The Eleventh U.S. Circuit Court of Appeals upheld his conviction, rejecting his challenge to the scope of the evidence law.

I have complained about the recent tendency of SCOTUS to take up lots of seemingly quirky criminal justice cases unlikely to have a huge impact, and then also dodging big issues like the reach and application of the Second, Sixth and Eighth Amendments in light of recent rulings. This new Yates case strikes me as another example of a seemingly quirky criminal justice case with only limited implications UNLESS some Justices were eager to make a big stink about the feds going criminally after a little fisherman.

If a majority of Justices were to develop some novel jurisprudence to help fisherman Yates prevail (and, as this local article highlights, he seems like a pretty sympathetic character), this Yates case could possibly become a very big part of on-going policy debates concerning the overfederalization and overcriminalization of seemingly small matters that arguably could and should be handled through civil means and without too much federal prosecutorial involvement.  Indeed, I suspect (and certainly hope) that this Yates case might bring out more amici from the right than from the left, largely because the big concern raised by the case is the ability for small local businesses to conduct their affairs without facing criminal prosecution for not playing nice with federal bureaucrats. 

April 28, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Feds in NYC corruption sentencing argue 105 and 80 years necessary for white-collar defendants

An interesting white-collar sentencing scheduled for today in Manhattan is previewed in this New York Times article last week which ran under the headline "Decades in Prison Sought for CityTime Scheme." Here are the details that prompt the title of this post:

Federal prosecutors in Manhattan have asked a judge to impose sentences of 105 years, 80 years and up to 40 years on three men who the government has said became “unbelievably rich” in connection with New York City’s scandal-marred payroll modernization project known as CityTime.

The three men were convicted in a federal corruption trial last fall in Federal District Court and are scheduled to be sentenced on Monday. T he cost of the CityTime project was originally budgeted at $63 million but exploded to about $700 million, with almost all of the more than $600 million that New York City paid to its prime contractor, Science Applications International Corporation, or S.A.I.C., tainted by fraud, a federal indictment charged.

“The CityTime fraud, kickback and money laundering scheme that these defendants orchestrated, managed and operated represents one of the worst, if not the worst, financial crimes against the city,” the office of Preet Bharara, the United States attorney in Manhattan, said in a memo filed on Sunday night recommending the sentences, which it said were appropriate under the advisory sentencing guidelines.  “The need for general deterrence supports severe sentences in this case,” the office added.

The government asked the judge, George B. Daniels, to sentence Gerard Denault, 52, who was S.A.I.C.’s project manager on CityTime, to 105 years in prison.  “He used his significant talents to abuse his executive position at S.A.I.C. to an extreme degree,” two prosecutors, Howard S. Master and Andrew D. Goldstein, wrote.  “Testimony at trial from witness after witness reflected that he used his power and his intellect to intimidate and sideline anyone at S.A.I.C who stood in the way of his criminal scheme.”

Mr. Denault’s lawyer, Barry A. Bohrer, said his only comment on the government’s request was “not one that is printable.”  He has requested a five-year sentence for his client.

Mr. Bharara’s office said in the memo that another defendant, Mark Mazer, 50, a former consultant to the city’s Office of Payroll Administration, had “abused his power as the city’s project manager to line his own pockets to a breathtaking degree rarely seen in any fraud or kickback case,” taking about $30 million over five years.  The prosecutors’ office asked that he be sentenced to 80 years.

Mr. Mazer’s lawyer, Gerald L. Shargel, who is seeking a five-year sentence for his client, said in a phone interview on Monday that it was the government’s request that was “breathtaking,” and that such sentences “should be reserved for the worst offenders among us.” Mr. Shargel said that the large amounts of money in the case had helped to inflate the recommended sentences.  “Just because the guidelines give the prosecutors the authority to argue for this sentence, it doesn’t mean that it’s the right thing to do,” Mr. Shargel said. “What do you give a murderer — 160 years?”

Without knowing all the facts of these cases, I cannot comment on whether these fraud defendants are really among the truly "worst of the worst" of white-collar criminals.  But I can comment that federal prosecutors, at least in this case, seem to not be really committed to helping the district judge here determine what sentence would truly be "sufficient but not greater than necessary" to achieve federal sentencing goals under 18 USC 3553(a).

Given that it would be remarkable if the defendants here would be able to live even half as many years in prison as the prosecutors are urging, it is obviously ludicrous to assert that a 105-year sentence is not greater than necessary for a 52-year-old defendant.  But it seems that a representative of the US government is going to stand up in to federal court today and make such a ludicrous sentencing claim.

UPDATE: The headline of this AP article about the now-completed sentencings in this matter reports the basic outcome: "NYC payroll scandal defendants each get 20 years."

April 28, 2014 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, April 22, 2014

Short federal sentence for cocaine offense when "'Breaking Bad' meets 'Walter Mitty'"

32-waltermittyA remarkable federal drug sentencing case culminated in a short prison sentence as reported in this local article headlined "'Breaking Bad' meets 'Walter Mitty' in Alachua County contractor's cocaine sentencing."  Here are the details:

The judge said the criminal case seemed to be more like a movie than an actual court proceeding. But on Monday the strange saga of an Alachua County man who went to Puerto Rico to try and dig up 11 pounds of cocaine ended in a short prison sentence and a pledge to volunteer with Habitat for Humanity.

U.S. District Judge Timothy Corrigan sentenced Rodney Hyden, 56, to 60 days in prison, one year of home detention and five years of supervised release.  In imposing the sentence, Corrigan said it was one of the most difficult decisions he’d had to reach in a long time.  He said he’s struggled with what the proper sentence should be.

Hyden, who owns his own construction company, will also be required to volunteer an average of 20 hours a week at Habitat for Humanity during his home detention and supervised release and will also be expected to build a Splash Park for the city of Newberry, where he lives.

Hyden could have faced 10 years in prison, but prosecutors waived the minimum mandatory laws and said the crime didn’t mandate a sentence that long.  The head of Habitat and the mayor of Newberry also wrote letters to Corrigan saying they were comfortable with Hyden providing his services.

Defense Attorney Mark Rosenblum argued that his client should be let off without jail time and required to do the community service with Habitat for Humanity and Newberry. Federal prosecutor Tysen Duva asked for 30 months of prison.  “Rodney Hyden is a good man who made a bad mistake,” Rosenblum said. “Luckily for him, the government was represented by an honest prosecutor and the case was presided over by an extremely fair judge.”

A neighbor of Hyden’s in Newberry told him that when he lived in Puerto Rico he found cocaine washed up on the beach and buried it near the trailer where he lived at the time. Hyden talked to several people about getting the cocaine, but he didn’t know that one of those people, Daniel Jimenez, was working as an informer for the Alachua County Sheriff’s Office.

Two undercover agents posing as narcotics traffickers met with Hyden and offered to help him get the drugs to Northeast Florida.  Hyden went to Puerto Rico twice seeking the drugs, but couldn’t find them.  He ended up giving a treasure map of where he thought the drugs might be to the undercover agents.  Police found the drugs, which had degraded to the point of being worthless, and arrested Hyden.

During the trial, Rosenblum argued that his client had been entrapped by the government and never would have gone after the drugs if people working for the government hadn’t encouraged it.  Jurors rejected that argument.

Hyden was convicted of a serious crime, but at the same time there was no real victim in the case, and even if he’d managed to retrieve the drugs he could not have sold them because they had degraded so much, Corrigan said.  Corrigan said the seriousness of the drug crime mandated some prison time, but not a lot.

The judge also dropped some pop culture references. “If this case wasn’t so serious it would make a great movie,” Corrigan said.  “It’s a combination of ‘Breaking Bad’ and the ‘Secret Life of Walter Mitty.’”

April 22, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Thursday, April 17, 2014

"Culpability and Modern Crime"

The title of this post is the title of this intriguing new paper by Samuel Buell now available via SSRN. Here is the abstract:

Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material.  Many of these projects are laudable.  But progressive programs in substantive criminal law can raise difficult problems of culpability.  Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded within socially welcome activities.  With such offenses, legal institutions struggle in borderline cases to locate sufficient fault to satisfy the demands of justification for punishment.  This Article demonstrates this problem through exploration of the law of each of these offenses in modern form.

To address the problem, the Article turns to criminal law theory, finding a connection between culpability and the principle of notice in criminal law.  Rather than its absence serving to exculpate, notice can profitably be understood to inculpate.  To manage the problem of culpability in modern crime, the Article concludes, legal institutions should attend more explicitly — in both criminalization and adjudication — to the questions whether the actor was aware of the normative wrongfulness of her conduct and, if not, whether punishment is justified on a negligence level of fault.  This orientation is especially advisable when further expansive moves in American criminal justice are now difficult to justify.

April 17, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, April 16, 2014

Another bizarre, sad and fatal case of reefer madness?

As reported in this prior post, a Denver coroner report concluded that a young man fell to his death in March after eating marijuana cookies which may have caused him to act erratically.  Now, as reported in this local article, headlined "Police looking at pot role in wife's murder," another sad and fatal event might be linked to marijuana use in Colorado. Here are the distressing details:

The Denver man accused of shooting his wife in their home is in jail without bond. Richard Kirk made his first court appearance on Wednesday. He's facing first-degree murder charges after reportedly telling officers that he killed his wife, 44-year-old Kristine Kirk, while she was on the phone with 911.

Richard's family was in court on Wednesday to support him. They declined comment because they were advised not to speak.

It happened around 9:30 p.m. on Monday in the 2100 block of South St. Paul Street. Law enforcement sources tell 9NEWS that Kristine told the 911 dispatcher her husband Richard Kirk may have eaten marijuana edibles and that he was hallucinating and scaring their three young children.

"I can't get necessarily into specifics about that, but we are looking at a marijuana aspect of this investigation to see if it did play a role in this particular crime," said Denver Police spokesperson Sonny Jackson.

A longtime friend of the Kirk family, who did not want to be identified, told 9NEWS Richard is a religious man, happy-go-lucky and very friendly, who is not known for being violent. The friend also said Kristine was an amazing mother and good friend. They are stunned by what happened. It is a shock shared by many in the neighborhood where the crime scene tape remains a stark reminder of what unfolded there....

Richard has a prior arrest in Douglas County for driving under the influence and careless driving. A police source told 9NEWS it did not appear cops had ever been called to the home before.

Neighbors say they are still coming to grips with what happened. "Just kind of shocking, and it's almost just incredible that something like this would happen," Coyne said.

Kristine was on the phone with 911 for 12 minutes before she was shot. Denver Police said that's not unusual because the call originally came in as non-life threatening, but they plan to look into the circumstances of that call to make sure it was handled properly.

Though I am not ready to jump to any conclusions about this bizarre story, if this sad matricide gets attributed to marijuana use it could certainly impact public perceptions about the pros and cons of marijuana reform.

UPDATE:  I just came across this AP story, headlined "Police: Denver man ate marijuana candy before fatally shooting his wife," which provides these additional details about this tragic story:

Authorities say a Denver man accused of killing his wife while she was on the phone with 911 ate marijuana-infused candy before he allegedly shot her.

According to search warrants released Thursday, 44-year-old Kristine Kirk told dispatchers her husband bought and ate the candy before he started hallucinating and frightening the couple's three children. Police say 47-year-old Richard Kirk also may have taken prescription pain medication before he began acting erratically.

It was not clear whether the pot influenced his behavior.

April 16, 2014 in Marijuana Legalization in the States, Offense Characteristics | Permalink | Comments (6) | TrackBack