Monday, September 28, 2015

FBI releases national crime data reporting 2014 continued historic crime declines

If there was a close causal inverse relationship between crime and nationwide sentencing and prison reforms, one might have reasonably expected crime rates to have started moving up in recent years.  After all, at the federal level there have been dramatic reforms over the last decade ranging from (1) the Supreme Court's Booker ruling making the guidelines advisory and various other rulings restricting in the reach of other mandatory sentencing provisions, (2) the US Sentencing Commission repeatedly reducing the severity of the sentencing guidelines for crack offenses and other drugs and other offenses, and (3) Congress enacting the Fair Sentencing Act.  During the same period, many states north and south, east and west (including California and Texas, the two states with the largest prison populations), have reformed sentencing laws and prison policies in various ways.  

But, as this new press release from the FBI reports, the "estimated number of violent crimes in the nation decreased 0.2 percent in 2014 when compared with 2013 data, according to FBI figures released today. Property crimes decreased by 4.3 percent, marking the 12th straight year the collective estimates for these offenses declined."  Here is more of the good crime news via the FBI:

The 2014 statistics show the estimated rate of violent crime was 365.5 offenses per 100,000 inhabitants, and the property crime rate was 2,596.1 offenses per 100,000 inhabitants. The violent crime rate declined 1.0 percent compared to the 2013 rate, and the property crime rate declined 5.0 percent. These and additional data are presented in the 2014 edition of the FBI’s annual report Crime in the United States. This publication, which is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program, also includes limited federal crime reporting and human trafficking data.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and non-negligent manslaughter, rape, robbery, and aggravated assault as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.... The program also collects arrest data for the offenses listed above plus 20 offenses that include all other crimes except traffic violations....

A total of 18,498 city, county, state, university and college, tribal, and federal agencies participated in the UCR Program in 2014. A high-level summary of the statistics reported by these agencies, which are included in Crime in the United States, 2014, follows:

  • In 2014, there were an estimated 1,165,383 violent crimes. Murder and non-negligent manslaughter decreased 0.5 percent and robbery decreased 5.6 percent when compared with estimates from 2013. Rape (legacy definition) and aggravated assault, however, increased 2.4 percent and 2.0 percent, respectively.

  • Nationwide, there were an estimated 8,277,829 property crimes. The estimated numbers of each of the property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 10.5 percent, larceny-thefts declined 2.7 percent, and motor vehicle thefts were down 1.5 percent.

September 28, 2015 in National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Wednesday, September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Tuesday, September 22, 2015

Former peanut CEO (sort of) gets less than LWOP for salmonella outbreak

As reported in this Reuters article, high-profile federal white-collar sentencings yesterday culminated in a set of severe sentences for executives culpable in a harmful food safety crime.  Here are the details:

The former owner of a peanut company in Georgia was sentenced to 28 years in prison on Monday for his role in a salmonella outbreak that killed nine people and sickened hundreds, a rare instance of jail time in a food contamination case.  

Stewart Parnell, 61, who once oversaw Peanut Corporation of America, and his brother, Michael Parnell, 56, who was a food broker on behalf of the company, were convicted on federal conspiracy charges in September 2014 for knowingly shipping salmonella-tainted peanuts to customers.  Contamination at the company's plant in Blakely, Georgia, led to one of the largest food recalls in U.S. history and forced the company into liquidation.

U.S. District Judge Louis Sands gave Michael Parnell 20 years in prison.  Mary Wilkerson, 41, a former quality control manager at the plant who was found guilty of obstruction, was sentenced to five years in prison.  Stewart Parnell faced life in prison and his brother faced about 24 years.

Before the judge issued the sentences, Stewart Parnell said; “This has been a seven-year nightmare for me and my family. I’m truly, truly sorry for what’s happened.”             

A man whose mother died from eating tainted peanut butter was among those who told a federal judge on Monday that the Parnells should receive stiff prison time.  Jeff Almer, of Brainerd, Minnesota, said his mother, Shirley Almer, was among the nine people killed in the salmonella outbreak linked to the company in 2009.  "My mother died a painful death from salmonella, and the look of horror on her face as she died shall always haunt me," Almer said during the hearing on Monday in Albany, Georgia.  "I just hope they ship you all to jail," Almer said.

During the seven-week trial last year, prosecutors said the Parnell brothers covered up the presence of salmonella in the company's peanut products for years, even creating fake certificates showing the products were uncontaminated despite laboratory results showing otherwise.  The Parnells have said they never knowingly endangered customers, and their supporters asked a judge on Monday to show mercy....

An official with the Centers for Disease Control and Prevention testified at the trial that the company's peanut products sickened 714 people in 46 states, including 166 of whom were hospitalized.

Though not formally an LWOP sentence, the federal prison term here means the main defendant will have to live until well into his mid-80s to make it through his whole sentence even with time off for good behavior (and the brother will need to make it to his mid 70s). Thus, while I believe these are technically below-guideline sentences, they are still quite severe given the defendants' ages.

Prior related posts:

September 22, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Monday, September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Sunday, September 20, 2015

You be the federal judge: how long a prison term for peanut executives convicted of selling salmonella-tainted food?

In this prior post a few months ago, I highlighted that a peanut company executive convicted of selling salmonella-tainted food was facing an “unprecedented” federal life without parole sentence according to the recommended guideline sentencing range. The sentencing proceeding, as reported in this new AP piece, is slated to go forward this Monday. Here is context for answering the query in the title of this post:

A year after a federal jury convicted him of crimes behind a salmonella outbreak blamed for killing nine people and sickening hundreds more, former peanut executive Stewart Parnell returns to court facing possible imprisonment for the rest of his life.

A sentencing hearing was scheduled for Monday in Albany, Georgia, for the 61-year-old former owner of Peanut Corporation of America. Due in U.S. District Court with Parnell were two co-defendants — his brother and a plant manager — also found guilty in what experts called the first food-poisoning trial of American food processors.

Parnell was convicted Sept. 19, 2014, of knowingly shipping salmonella-tainted peanut butter from his plant in Blakely, Georgia, to Kellogg's and other customers who used it in products from packaged crackers to pet food. The jury also found Parnell and his brother, food broker Michael Parnell, guilty of faking results of lab tests intended to screen for salmonella.

The brothers were charged after a salmonella outbreak that sickened 714 Americans in 46 states was traced to Peanut Corporation's plant in Blakely, Georgia, in early 2009. The Centers for Disease Control and Prevention reported that nine people who ate tainted peanut butter died during the outbreak in 2008 and 2009, though it couldn't say for sure salmonella caused each death.

Federal investigators found a leaky roof, roaches and evidence of rodents, all ingredients for brewing salmonella. They also uncovered emails and records showing food confirmed by lab tests to contain salmonella was shipped to customers anyway. Other batches were never tested at all, but got shipped with fake lab records saying salmonella screenings were negative.

In a court order Friday, Judge W. Louis Sands noted Stewart Parnell faces a possible prison sentence of 9,636 months — which comes to 803 years. The U.S. Probation Office, which prepares pre-sentencing reports to help guide federal judges, recommended the stiff sentence based on the number of illnesses as well as estimates that the outbreak, which triggered one of the largest food recalls in U.S. history, cost Parnell's corporate customers $144 million.

The judge has the authority to impose a lighter sentence. Randy Napier, whose 80-year-old mother in Ohio died from salmonella poisoning after she ate contaminated peanut butter from Parnell's plant, said he plans to testify at the hearing and ask the judge to show little mercy. "We need to send a message to these food manufacturers," said Napier of Durham, North Carolina. "No one else should have to go through what we did, watching my mother die. I'm hoping to have closure. It's been six years of utter hell."

Attorneys in the case say voluminous testimony from victims seeking stiff sentences and defendants' relatives asking for leniency could push the sentencing proceedings into a second day Tuesday.

Parnell's attorneys insist locking him up for life would be too harsh. Even food-safety attorney Bill Marler, who represented many families of victims in the salmonella outbreak, has said life imprisonment would be "unprecedented."...

Michael Parnell, who was convicted on fewer counts than his brother, faces a recommended punishment of 19 to 24 years in prison. Co-defendant Mary Wilkerson, the Georgia plant's quality control manager, faces five years. She was convicted of obstruction of justice.

Three deaths linked to the outbreak occurred in Minnesota, two in Ohio, two in Virginia, one in Idaho and one in North Carolina.

Prior related post:

September 20, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (7)

Friday, September 18, 2015

Shouldn't former federal judge Mark Fuller now be federally prosecuted for perjury?

The question in the title of this post prompted by this new AP article, headlined "Judicial Conference says former federal judge's conduct was reprehensible, impeachable." Here are the details:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge — had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.  

In a letter to the House Judiciary Committee [which can be accessed here], the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary. "This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner....

The Judicial Conference wrote that there was substantial evidence that the judge "physically abused Kelli Fuller at least eight times, both before and after they married, which included and culminated in the assault that took place on Aug. 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia." The conference wrote that Fuller denied under oath to the investigating committee that he ever hit, punched or kicked his wife, and that the investigating committee considered those to be false statements. The Judicial Conference also cited a separate incident, on which it did not elaborate, saying Fuller in 2010 made a false statement to the chief judge that caused a disruption in operations and a loss of public confidence in the court.

The House committee is not releasing the full report, which contains some sensitive victim information. Fuller was placed on leave after his arrest. In May, he announced that he was resigning effective Aug. 1. The Judicial Council of the U.S. 11th Circuit at the time said Fuller's actions might have warranted impeachment, but the reasons for the determination were not released until this week.

Fuller was appointed to the bench in 2002 by then-President George W. Bush. He is perhaps best known for presiding over the 2006 public corruption trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

As celebrity white-collar attorneys surely recall, in recent times a number of prominent public figures ranging from Barry Bonds to Roger Clemens to Marion Jones to 'Lil Kim to Scooter Libby have been federally prosecuted for alleged acts of perjury that seems far less serious and consequential than what the Judicial Conference has found former judge Mark Fuller committed.  Absent some prominent explanation for why a federal perjury prosecution would not be worthwhile in this setting, I will be mighty disappointed and a bit concerned if Fuller does not face sanctions for his apparent criminal behavior in this matter.  (Critically, I am not — at least not yet — asserting that Fuller should be imprisoned for his lying under oath to cover up his misbehavior and stay in his position as a federal judge.  But I am saying (former state DA prosecutor) Fuller ought to at least face federal criminal charges and be subject to the heat that comes with a formal federal prosecution.)

September 18, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15)

Wednesday, September 16, 2015

Split en banc Third Circuit struggles through how to review and assess Alleyne error

A decade ago, way back in the early Blakely and Booker days, this blog covered lots of cases dealing with lots of Sixth Amendment sentencing problems and circuit court efforts to sort through all the problems. Anyone with a continued fondness for the legal challenges and debates of that era will want to be sure to find the time to read today's work by the full Third Circuit in US v. Lewis, No. 10-2931 (3d Cir. Sept. 16, 2015) (available here). I will provide the highlights via the first paragraph from each of the three opinions.

Here is the start of the plurality opinion in Lewis:

Jermel Lewis was sentenced for a crime with a seven-year mandatory minimum — brandishing a firearm during and in relation to a crime of violence — notwithstanding the fact that a jury had not convicted him of that crime.  Instead, he had been convicted of the crime of using or carrying a firearm during and in relation to a crime of violence, which has a five-year mandatory minimum. Lewis was never even indicted for the crime of brandishing.  In Alleyne v. United States, the Supreme Court held that this scenario, i.e., sentencing a defendant for an aggravated crime when he was indicted and tried only for a lesser crime, violates a defendant’s Sixth Amendment right to a jury trial.  133 S. Ct. 2151, 2163-64 (2013).  Even though that constitutional issue is settled, we still must address the issue of whether the error that transpired in this case was harmless. We conclude that the error was not harmless because it contributed to the sentence Lewis received.  Accordingly, we will vacate Lewis’s sentence and remand for resentencing.

Here is the start of the concurring opinion in Lewis:

Jermel Lewis was charged with and convicted of using or carrying a firearm, but was eventually sentenced on the basis of a different, aggravated crime.  Conviction of the aggravated crime would have required proof of an element unnecessary to a using or carrying offense: that Lewis had brandished a firearm.  Lewis’s indictment did not charge him with brandishing, nor did the jury find that he had committed that crime beyond a reasonable doubt.  Yet Lewis was subjected to the enhanced mandatory minimum sentence required for brandishing.  I agree with the majority that this error demands resentencing; the new sentence should be based solely on the crime with which Lewis was actually charged and for which he was convicted.  But I would hold that this error was structural and therefore reversible if properly preserved.  Structural errors do not require a court to inquire into whether the error was harmless.

Here is the start of the dissenting opinion in Lewis:

The plurality finds that Jermel Lewis’s substantial rights were affected when he was sentenced to a seven-year mandatory minimum sentence for brandishing a weapon during a crime of violence, despite undisputed and overwhelming testimony that he pointed a gun at many people during a robbery.  Though what occurred below was error, in my view, for the reasons explained in Judge Smith’s concurring opinion, the error occurred both at trial and at sentencing.  So, upon a review of the uncontroverted evidence presented to the grand and petit juries, I would hold that the error was harmless.

September 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, September 15, 2015

Two very interesting (and very different) long reads about mass incarceration and drug dealing

I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, September 10, 2015

New Justice Department sound and fury about white-collar prosecutions signifying....?

The interrupted question in the title of this post is my first-cut reaction and uncertainty in response to this front-page New York Times report on new Justice Department guidance concerning white-collar prosecutions.  The NYTimes piece is headlined "Justice Department Sets Sights on Wall Street Executives," and here are excerpts:

Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.

The new rules, issued in a memo to federal prosecutors nationwide [which can be accessed here], are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.

“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.” Photo

Though limited in reach, the memo could erase some barriers to prosecuting corporate employees and inject new life into these high-profile investigations. The Justice Department often targets companies themselves and turns its eyes toward individuals only after negotiating a corporate settlement. In many cases, that means the offending employees go unpunished.

The memo, a copy of which was provided to The New York Times, tells civil and criminal investigators to focus on individual employees from the beginning. In settlement negotiations, companies will not be able to obtain credit for cooperating with the government unless they identify employees and turn over evidence against them, “regardless of their position, status or seniority.” Credit for cooperation can save companies billions of dollars in fines and mean the difference between a civil settlement and a criminal charge....

But in many ways, the new rules are an exercise in public messaging, substantive in some respects but symbolic in others. Because the memo lays out guidelines, not laws, its effect will be determined largely by how Justice Department officials interpret it. And several of the points in the memo merely codify policy that is already in place.

“It’s a good memo, but it states what should have been the policy for years,” said Brandon L. Garrett, a University of Virginia law professor and the author of the book “Too Big to Jail: How Prosecutors Compromise With Corporations.” “And without more resources, how are prosecutors going to know whether companies are still burying information about their employees?”

It is also unknown whether the rules will encourage companies to turn in their executives, but Ms. Yates said the Justice Department would not allow companies to foist the blame onto low-level officials. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail,” she said.

Under Attorney General Eric H. Holder Jr., the Justice Department faced repeated criticism from Congress and consumer advocates that it treated corporate executives leniently. After the 2008 financial crisis, no top Wall Street executives went to prison, highlighting a disparity in how prosecutors treat corporate leaders and typical criminals. Although prosecutors did collect billions of dollars in fines from big banks like JPMorgan Chase and Citigroup, critics dismissed those cases as hollow victories.

Justice Department officials have defended their record fighting corporate crime, saying that it can be nearly impossible to charge top executives who insulate themselves from direct involvement in wrongdoing. Ms. Yates’s memo acknowledges “substantial challenges unique to pursuing individuals for corporate misdeeds,” but it says that the difficulty in targeting high-level officials is precisely why the Justice Department needs a stronger plan for investigating them....

Ms. Yates, a career prosecutor, has established herself in the first months of her tenure as the department’s most vocal advocate for tackling white-collar crime. She foreshadowed plans for the new policy in a February speech to state attorneys general, in which she declared that “even imposing unprecedented financial penalties on the institutions whose conduct led to the financial crisis is not a substitute for holding individuals within those institutions personally accountable.”...

While the idea of white-collar investigations may conjure images of raids of corporate offices by federal agents, the reality is much different. When suspected of wrongdoing, large companies typically hire lawyers to conduct internal investigations and turn their findings over to the Justice Department. Those conclusions form the basis for settlement discussions, and they are likely to take on greater significance now that companies will be expected to name names....

Still, even if the Justice Department’s effort succeeds, it will not automatically put more executives behind bars. Mr. Garrett, the University of Virginia law professor, analyzed the cases in which corporate employees had been charged. More than half, he said, were spared jail time.

I am going to need to read the new Yates memo a few times before I will have any sense of whether and how this new guidance to federal prosecutors is likely to really "move the needle" with respect to white-collar prosecutions. But, in part because my white-collar expertise and experience is at the sentencing stage after an individual has been charged and convicted of a federal economic crime, I am not sure I will ever be able to see clearly from the very back-end of the federal criminal process how much this memo could alter what typically happens at the very front-end of the federal criminal process in the corporate crime world.

In turn, I would be grateful to receive (in the comments or off-line) input from persons with more experience than me on the front-end of corporate criminal investigations about whether this Yates memo signifies much or not so much in the white-collar world. If nothing else, I suspect the Yates memo will prompt many "client alert memos" from big corporate law firms to their corporate clients, and perhaps what those client alerts say about the Yates memo could matter as much as what the Yates memo itself says.

UPDATE: At this link one can now find the text of the big speech Deputy Attorney General Sally Quillian Yates delivered today at New York University School of Law concerning DOJ's "New Policy on Individual Liability in Matters of Corporate Wrongdoing."  White-collar practitioners will want to read the speech in full, and here is one thematic paragraph from the heart of the text:

But regardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases.  The public expects and demands this accountability.  Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.  We could be doing a bang-up job in every facet of the department’s operations — we could be bringing all the right cases and making all the right decisions.  But if the citizens of this country don’t have confidence that the criminal justice system operates fairly and applies equally — regardless of who commits the crime or where it is committed — then we’re in trouble.

September 10, 2015 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Friday, September 04, 2015

Remarkable federal sentencing story pits prosecutors against each other

A colleague alerted me to a remarkable and disconcerting federal sentencing story from the Carolinas, which is reviewed in this local piece headlined "Gang Leader Sought Prosecutor’s Murder: In spite of threat, her superiors sought a lesser sentence." Here are the basics from the start of the article:

Federal prosecutor Denise Walker, who was forced into hiding for six weeks as a result of a drug dealer’s threats to have her killed, later resigned when her superiors in the U.S. Attorney’s office in Raleigh proposed a lesser sentence for the drug dealer and blocked any mention of his murderous intentions in a pre-sentencing report.

Walker had been the lead federal attorney on a task force of law enforcement professionals who flushed out and captured members of a criminal gang.  She resigned her position in March 2015 after learning of the intentions of her superiors, U. S. Attorney Thomas Walker (no relation to Denise Walker) and his top deputy John Bruce, to seek a reduction of the mandatory life sentence called for in federal guidelines for Reynaldo Calderon, the gang leaders who threatened to have her killed.

In exchange for Calderon’s cooperation with testimony against one of his associates, the government had proposed a 30-year sentence for Calderon, now age 31.  Denise Walker believed Calderon’s cooperation was insignificant and did not warrant any leniency.  At the sentencing hearing, at which she testified, she said her superiors downplayed the Calderon threat and even mocked her for being concerned about it.  And she termed the proposed lesser sentence and the omission of the death threat in the pre-sentencing hearing “deplorable.”

During the sentencing hearing, however, the judge presiding over the case shared her concern, denied the government’s request for a lesser sentence, and imposed the mandatory life sentence guidelines prescribed.

September 4, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, September 02, 2015

"The Pressing Need for Mens Rea Reform"

The title of this post is the title of this notable new "Legal Memorandum" authored by John Macolm, who is the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Here is the abstract and "Key Points" from this publication:

Abstract

One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws.  Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system.  Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished.  That is something that should concern everyone.

Key Points

1 Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.

2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist.  Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.

3 Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided.  If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.

September 2, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, September 01, 2015

"Charging on the Margin"

The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions.  In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation.  While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives.  This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors.  As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency.  In other words, prosecutors can sometimes gain more by charging less.  By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant.  Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration.  Changing this approach could have several salutary effects on the administration of collateral consequences.  At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Guns, gangs, ganja, going after police ... are there obvious lessons from 2015 homicide spikes?

The question in the title of this post is prompted by this lengthy front-page New York Times article spotlighting the notable spike in homicides in many US cities so far in 2015.  The article is headlined "Murder Rates Rising Sharply in Many U.S. Cities," and here are excerpts:

Cities across the nation are seeing a startling rise in murders after years of declines, and few places have witnessed a shift as precipitous as this city.  With the summer not yet over, 104 people have been killed this year — after 86 homicides in all of 2014.

More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier.  In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.

Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing.  Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.

Rivalries among organized street gangs, often over drug turf, and the availability of guns are cited as major factors in some cities, including Chicago.  But more commonly, many top police officials say they are seeing a growing willingness among disenchanted young men in poor neighborhoods to use violence to settle ordinary disputes....

Urban bloodshed — as well as the overall violent crime rate — remains far below the peaks of the late 1980s and early ’90s, and criminologists say it is too early to draw broad conclusions from the recent numbers.  In some cities, including Cincinnati, Los Angeles and Newark, homicides remain at a relatively steady rate this year.

Yet with at least 35 of the nation’s cities reporting increases in murders, violent crimes or both, according to a recent survey, the spikes are raising alarm among urban police chiefs. The uptick prompted an urgent summit meeting in August of more than 70 officials from some of the nation’s largest cities.  A Justice Department initiative is scheduled to address the rising homicide rates as part of a conference in September....

The police superintendent in Chicago, Garry McCarthy, said he thought an abundance of guns was a major factor in his city’s homicide spike.  Even as officials in both parties are calling for reducing the prison population, he insisted that gun offenders should face stiffer penalties.  “Across the country, we’ve all found it’s not the individual who never committed a crime before suddenly killing somebody,” Mr. McCarthy said on Monday. “It’s the repeat offenders. It’s the same people over and over again.”

Among some experts and rank­and­file officers, the notion that less aggressive policing has emboldened criminals — known as the “Ferguson effect” in some circles — is a popular theory for the uptick in violence.  “The equilibrium has changed between police and offenders,” said Alfred Blumstein, a professor and a criminologist at Heinz College, Carnegie Mellon University.

Others doubt the theory or say data has not emerged to prove it.  Richard Rosenfeld, a criminologist from the University of Missouri­-St. Louis, said homicides in St. Louis, for instance, had already begun an arc upward in 2014 before a white police officer killed an unarmed teenager, Michael Brown, in nearby Ferguson.  That data, he said, suggests that other factors may be in play.

Less debated is the sense among police officials that more young people are settling their disputes, including one started on Facebook, with guns....

In New Orleans, Michael S. Harrison, the police superintendent, said the city’s rise in homicides did not appear to reflect any increase in gang violence or robberies of strangers, but rather involved killings inside homes and cars by people who know their victims — particularly difficult crimes to predict or prevent....

In New York, there have been a larger number of gang­-related killings, Stephen Davis, the department’s top spokesman, said.  But he also said many homicides remained unexplained, the result of disputes with murky origins.  “There are a lot of murders that happen in the spur of the moment,” Mr. Davis said.

Especially because 2014 was a year with record-low homicide rates in many jurisdictions, I am not too surprised (though I am much troubled) by these new homicide data. I share the view that it is too early to draw any firm conclusions as to what is causing or what should be done about this uptick in deadly urban violence.  But I also think it is not too early for researchers to be asking a lot of hard questions about what sets of legal and social factors which were previously successful in reducing homicide rates are now proving less effective.

Astute readers should see that I threw ganja into the alliterative mix of factors in the title of this post because changes in national marijuana policies and practices are among the legal and social factors that I have been watching closely lately in relation to crime rates.  This New York Times article does not discuss this factor — or many others crime and punishment factors like increases in opioid addiction, or reduced use of the death penalty — surely because there are so many different and hard-to-track factors which might play some role in any changing nationwide  crimes patterns.

September 1, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Thursday, August 27, 2015

BJS releases latest data on crime victimization throughout United States

This new press release from the Bureau of Justice Statistics reports on encouraging crime news for 2014 based on one notable metric. Here are the basic data from the press release:

The violent crime rate did not change significantly in 2014 compared to 2013, the Bureau of Justice Statistics (BJS) announced today. Violent crimes include rape or sexual assault, robbery, aggravated assault and simple assault.  In 2014, the violent crime rate was 20.1 victimizations per 1,000 U.S. residents age 12 or older.

The rate of domestic violence, which includes crime committed by intimate partners (current or former spouses, boyfriends or girlfriends) and family members was also unchanged from 2013 to 2014 (4.2 per 1,000). Likewise, in 2014 the rates of intimate partner violence (2.4 per 1,000), violence resulting in an injury (5.2 per 1,000) and violence involving a firearm (1.7 per 1,000) did not change significantly.

In comparison, the property crime rate, which includes burglary, theft and motor vehicle theft, fell from 131.4 victimizations per 1,000 households in 2013 to 118.1 per 1,000 in 2014.  The overall decline was largely the result of a decline in theft....

From 2013 to 2014, crime rates varied slightly by region. There was no significant difference in the rate of violent crime in the Midwest and South, while the Northeast and West had slight decreases.  Property crime rates decreased in the Midwest, South and Western regions of the country, but there was no significant change in the rate of property crime in the Northeast....

From 2013 to 2014, there were no significant changes in rates of violent crime across urban, suburban and rural areas.

The full new BJS report, excitingly titled "Criminal Victimization, 2014," is available here and the findings are based on data from the National Crime Victimization Survey (NCVS). Interestingly, while the press release quoted above emphasizes there has been no change in violent crime rate, the first few paragraphs of the full report provides a slightly more encouraging story based on the detailed numbers (and the broader multi-year trends) and highlighted by my emphasis below:

In 2014, U.S. residents age 12 or older experienced an estimated 5.4 million violent victimizations and 15.3 million property victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS).  There was no significant change in the overall rate of violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2013 (23.2 victimizations per 1,000 persons age 12 or older) to 2014 (20.1 per 1,000) (figure 1).  However, the rate of violent crime in 2014 was lower than the rate in 2012 (26.1 per 1,000).  From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000.

The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 131.4 victimizations per 1,000 households in 2013 to 118.1 victimizations per 1,000 in 2014.  The decline in theft accounted for the majority of the decrease in property crime.  Since 1993, the rate of property crime declined from 351.8 to 118.1 victimizations per 1,000 households.

This particular BJS data source had shown an uptick in overall crime in the period from 2010 to 2012. It is encouraging news that this data source is now showing that crime seemed to be going back down again in the period from 2012 to 2014.

August 27, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Saturday, August 22, 2015

Is it fair I assume Hillary Clinton committed politically-motivated federal crimes because I think her husband did as Prez?

Post_1428434129The question in the title of this post is prompted by my own efforts to understand my own uncertainty and ambivalence about what to make of the private-server/email controversies surrounding Prez candidate Hillary Clinton.  The question is influenced in part by this intriguing National Review account of what a possible criminal case against Hillary Clinton might look like.  

The National Review piece is authored by David French and runs under the headline "The People v. Hillary Rodham Clinton."  The piece imagines "the opening statement delivered in United States District Court for the District of Columbia on January 24, 2017, the first day of Hillary Clinton’s criminal trial," and here are excerpts from its start and end:

Ladies and gentlemen of the jury, the story you are about to hear is the story of a powerful person who believed her needs and her desires trumped federal law, who believed rules are for the little people.  It’s a story of a woman who was running the State Department with one eye on the White House and — because of her own political needs — established a private means of communication that placed America’s national security at risk.

To put the case plainly, the Defendant, Hillary Rodham Clinton, intentionally and unlawfully transmitted classified and confidential information crucial to our national defense through an unsecured, private e-mail system.  Moreover, she negligently stored confidential national defense information on unsecured and unauthorized private devices, including a server located in the bathroom of a loft apartment in Denver. Hillary Clinton committed federal crimes....

The bottom line is quite simple, Mrs. Clinton — working with key aides — ran for her own political convenience a communications system that wasn’t just shoddy or sloppy, but illegal.  She placed American secrets at risk, and in so doing placed American national security — and thus American lives — at risk.  For what purpose? So that she could insulate herself from accountability?  So that she could delete messages she didn’t want the public or other government officials to read?  Mrs. Clinton claims she’s protecting the privacy of her “yoga routines.”

The people of the United States don’t care about their former secretary of state’s exercise habits.  They do, however, care deeply about our national security and our rule of law.

Ladies and gentlemen, you have a sacred duty in this case — to put aside your political preferences, to ignore the incredible wealth and power of the defendant, and to simply apply the law. And when you do, we are confident that you will find Hillary Rodham Clinton guilty of each and every count in the indictment.  Thank you.

As I read this piece, I could kept going back to the first paragraph and kept realizing that I am instinctually inclined to believe Hillary Clinton as Secretary of State would readily break federal criminal laws for political purposes because two decades earlier Bill Clinton as President of the United States readily broke federal criminal laws for political purposes (perjury and obstruction of justice laws in his case).  Indeed, I have long had little respect for Bill Clinton because the Lewinsky affair and its aftermath has always struck me as a unpatriotic "story of a powerful person who believed [his political] needs and [his sexual] desires trumped federal law, who believed rules are for the little people."

Of course, in a traditional criminal trial, it would be bad form and perhaps problematically prejudicial for a prosecutor to suggest to a jury that a particular defendant is more likely guilty because of something done in the past by a spouse or other close family member.  Still, I cannot help but assume the worst about Hillary Clinton as "emailgate" continues to unfold principally because of her husband's past misbehavior.

Please let me know, dear readers, whether you think I am being unfair in my thinking about Hillary Clinton's actions (ideally without too much political vitriol).

August 22, 2015 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (24)

Friday, August 21, 2015

Father given significant prison term for role in deadly crash by underage daughter

As reported in this local article, sentencing took place yesterday in state case that should be a warning to all parents of teenagers (and also involves facts that would make for a challenging law school exam question in a torts or crim law class).  The article is headlined "Dad sentenced to prison in unlicensed daughter’s crash," and here are the sad details:

An New York man who admitted to handing over the keys to his SUV to his unlicensed teenage daughter was sentenced Thursday to 6 1/2 to 16 years in prison for his role in a car crash that killed three teens.

Michael Ware of Eastchester had faced a maximum of 21 years behind bars and $45,000 in fines when sentenced at the Wayne County Courthouse. In handing down the sentence, Judge Raymond Hamill repeatedly told Ware he was "a failure as a father" and that the crash had been "preventable, irresponsible, reckless, stupid, selfish" and, finally, "criminal."

Ware, 54, addressed the court briefly before Hamill pronounced his sentence. "I will never be able to feel the loss the families will forever feel," Ware said. "I can only say, hopefully, this brings some form of closure for everyone affected by this horrible tragedy. Neither I nor my daughter ... ever meant any harm to anyone that day."

Prosecutors said Ware let his daughter, then 15, drive his Chevrolet Suburban on Aug. 30, 2014, near a Pocono resort community in Paupack Township, where he owns a vacation home. His daughter took the vehicle, with five friends inside, to buy breakfast before speeding down a hill and flipping the SUV several times.

Cullen Keffer, Shamus Digney and Ryan Lesher, all 15-year-old residents of Bucks County, Pa., were killed. Another passenger was seriously injured. Ware's daughter, who lives in Pleasantville, N.Y., and another Westchester County teen were uninjured.  "He basically gave his daughter a gun and put the bullets in it for her," said Wilson Black, Digney's uncle, as he entered court.

The judge, who spoke for 20 minutes, noted Ware initially lied to investigators and, for about 60 days, let his daughter take the full blame for the crash by denying he had allowed her to drive that day.  Hamill also said Ware had failed to convince him that he was a candidate for rehabilitation.  "Not once did you say, 'I'm sorry' " until the sentencing, the judge said. "Not once did you say, 'I'm responsible.' "

The judge characterized Ware as an overly permissive father who failed to set appropriate rules.  He noted Ware's daughter told investigators she had been driving since the age of 14 and had driven from New York to the Poconos that weekend.  "Your failure to be a father and say 'No' caused these tragic deaths," he told Ware.

During the sentencing, relatives of the dead boys, who had waited nearly a year for a resolution, held hands and closed their eyes. Some of the parents sobbed while others sat stoically.  Each of the boys' parents delivered emotional victim-impact statements. As they spoke, the only sound in the room was that of relatives trying to choke back tears....

Ware's lawyer, Robert Reno, said he believed the judge had mischaracterized Ware's remorse and called the sentence "ridiculous." He said they would appeal. Ware pleaded guilty in July to three misdemeanor counts of reckless endangerment and three of involuntary manslaughter. He had initially faced felony charges.

Ware's daughter acknowledged responsibility in juvenile court to vehicular homicide counts and was placed on indefinite probation. She was also ordered to do 300 hours of community service, pay restitution and write a 2,000-word essay on the impact of her crime....

Joe Keffer, father of Cullen Keffer, spoke to reporters at the bottom of the courthouse steps after Ware's sentencing. "I'm satisfied the judge went over and above the recommended sentence," he said. "However, Mr. Ware will not have to endure the lifetime of misery our three families will."

August 21, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3)

Wednesday, August 19, 2015

Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses

This Reuters article, headlined "Former Subway pitchman seeks to plead guilty to child pornography, sex charges," provides a lot more factual details concerning the multiple federal sex offenders committed by a renown TV figure.  Here are the ugly factual and legal specifics surrounding Jared Fogle:

Former Subway sandwich chain pitchman Jared Fogle asked a federal judge on Wednesday to accept his plea of guilty to charges of child pornography and traveling for illicit paid sex with minors.  Federal Judge Mark Dinsmore must now review the plea deal Fogle's attorneys reached with prosecutors and decide whether to accept it. In the meantime the court entered a technical plea of not guilty on Fogle's behalf.

Fogle, who became famous after losing a lot of weight on a diet that included Subway sandwiches, was placed on home detention and must wear an electronic monitoring device. No date has been set for his next appearance.

Under the deal, Fogle would serve between five and 12 years in prison, pay $1.4 million in restitution to 14 minor victims, register as a sex offender and meet other conditions....

According to the charges, Rusell Taylor, head of the Jared Foundation set up to combat child obesity, secretly taped 12 minors while they changed clothes and showered at his home, including two who were as young as 13 or 14. He shared the images with Fogle, who knew they showed minors, prosecutors said.

Prosecutors said Fogle also received commercial child pornography from Taylor, viewed it and failed to report it. He stored explicit images of children as young as six, prosecutors said.

Fogle traveled to New York City at least twice between 2010 and 2013 seeking sex with minors, and paid for sex acts with a girl he knew to be 17 years old and another girl younger than 18. He told the first girl he would "make it worth her while" if she could find him another minor to have sex with, "the younger the girl, the better," according to the indictment. Prosecutors said he repeatedly asked prostitutes and others to find him 14- and 15-year-olds for sex.

Police and prosecutors said in a news conference on Wednesday that the investigation of Taylor and Fogle started after a tip from a private citizen....

Immediately after the hearing Fogle's wife, Katie, said in a statement that she would seek an end to the marriage. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a dissolution of the marriage," she said in the statement released by her lawyer.

Fogle's attorney Jeremy Margolis told reporters in a statement on the courthouse steps: "He expects to go to prison, he will do his time... He will continue to make amends to people whose lives he has affected, and at some point hopes to become again a productive member of society."

Authorities searched Fogle's home in the Zionsville suburb northwest of Indianapolis in July, two months after Taylor was arrested on federal child pornography charges. Assistant U.S. Attorney Steven DeBrota said at a news conference that Fogle continued to seek paid sex with minors even after Taylor's arrest, but was not successful.

I would need to see the text of any plea agreement in order to come up with any firm prediction as to Fogle's likely guideline sentencing range or as to what ultimate sentence he will receive. Nevertheless, the fact that Fogle's crimes included not only child porn offenses, but also repeated solicitation of under-age girls (even after he was under investigation) leads me to predict a double-digit prison sentence is already pretty likely.

Prior related post:

August 19, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

"Why Not Treat Drug Crimes as White-Collar Crimes?"

The question in the title of this post is the title of this notable new article available on SSRN authored by Thea Johnson and Mark Osler. Here is the abstract:

Drug dealing is a business enterprise.  At its core is the manufacture, transport, financing, and selling of illegal narcotics.  The most successful drug dealers are the ones who are skilled in the tools of business, and success is measured in the profit generated. Given these undeniable realities, shouldn’t we treat narcotics trafficking the way we do other business-based crimes like fraud or embezzlement?

One odd point of distinction between narcotics and other business crimes has been the frequent use of harsh sentencing measures to create deterrence in the former but not the latter.  This is odd because deterrence works where a potential violator both (1) is aware of possible sanctions, and (2) performs a rational cost-benefit analysis that incorporates those possible sanctions.  White collar defendants are a better target for deterrence measures by both of these metrics, yet we use those tough measures often in addressing drug crimes and almost never in tackling other business crimes.

To conflate the punishments for narcotics crime and other business crimes would be fairly simple.  They could fall under a single guideline in a guideline system, with sentences determined in proportion to the amount of profit taken. Statutes could be similarly constructed. Many sectors of society want to lower incarceration and bring new integrity to the criminal justice system. Treating drug crimes for what they are — crimes of commerce — would go a long way towards that goal.

August 19, 2015 in Drug Offense Sentencing, Offense Characteristics, White-collar sentencing | Permalink | Comments (5)

Monday, August 17, 2015

Split Ninth Circuit panel upholds federal conviction in "stash house" sting operation

The Ninth Circuit released a notable split panel decision today in US v. Pedrin, No. 11-10623 (9th Cir. Aug. 17, 2015) (available here), which rejects a notable challenge to a conviction emerging from ATF's "stash house sting" operations. This unofficial summary of the Pedrin ruling highlights why the two opinions in the case make for an interesting read:

Affirming a conviction and sentence for conspiracy to possess with intent to distribute cocaine, the panel held that the defendant’s prosecution did not result from “outrageous government conduct.”

The defendant was the target of a drug “stash house” sting, in which an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms suggested that he, the defendant, and a co-conspirator join forces, rob a fictitious stash house, and split the proceeds.  Following United States v. Black, 733 F.3d 294 (9th Cir. 2014), the panel held that this reverse sting operation was not outrageous government conduct warranting the dismissal of the indictment where the co-conspirator reached out to the government, and not vice versa; the defendant readily agreed to participate in the supposed stash-house robbery; and the defendant supplied plans and materials.  These circumstances provided a sufficient basis for the government to infer that the defendant had a predisposition to take part in the planned robbery.

Dissenting, Judge Noonan wrote that the defendant was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him.  Accordingly, even though the defendant did not argue entrapment, the court should hold that he was entrapped because the ATF originated the criminal design, implanted it in the defendant’s mind, and induced him to commit the crime that the government then prosecuted.

August 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, August 13, 2015

Fourth Circuit reverses district court's conclusion that Eighth Amendment precluded mandatory LWOP for piracy

Thanks to a helpful reader, I saw that the Fourth Circuit today handed down a panel decision in US v. Said, No. 14-4420 (4th Cir. Aug. 13, 2015) (available here), which reverses a district court's prior ruling that the Eighth Amendment precluded the imposition of mandatory LWOP federal sentences on defendants convicted of piracy.  The main opinion in Said ends its Eighth Amendment analysis this way:

Victims of piracy are robbed of their vessels, kidnapped, held hostage, and even tortured and murdered, while pirates are often able to find safe refuge in the territorial waters off Somalia and collect multi-milliondollar ransom payments.  In these circumstances, we agree with the government “that Congress could with reason conclude [that piracy] calls for the strong medicine of a life sentence for those who are apprehended.” See Br. of Appellant 39.

We are satisfied that “the relationship between the gravity of [the defendants’] offenses and the severity of [their proposed] punishment fails to create the threshold inference of gross disproportionality that is required” to satisfy prong one of the Eighth Amendment analysis.  See Cobler, 748 F.3d at 580.  Thus, without moving to prong two, we rule that the district court erred in invalidating § 1651’s mandatory life sentence as to these defendants and is obliged to impose such sentences on remand.

Judge Davis wrote an intriguing little concurring opinion urging Congress to no longer mandate LWOP sentences in all piracy cases because "not all piracy offenses are equal in severity, in heinousness, and in the dire consequences visited on innocent seafarers."  In so doing, Judge Davis dropped this notable footnote:

Indeed, in this case, Mr. Ibrahim, who was “the group’s leader” and who “led the new mission,” ante at 7, would seem to have earned a life sentence.  But he avoided that fate through the magic of “substantial assistance” and the fiction of “acceptance of responsibility,” the coins of the federal prosecutorial realm.  The inference is unavoidable that it is not really those who participate in piracy who receive a life sentence upon conviction (as we imagine Congress might believe), but rather those who are convicted after electing to go to trial.

August 13, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (10)

Friday, August 07, 2015

Aurora Shooter gets LWOP, not death, from Colorado jury

In a notable (but maybe not too surprising?) outcome, the Colorado jury previously quick to convict Aurora shooter James Holmes of capital murder today returned a sentencing verdict of life instead of death. More details and discussion of this verdict's significance will follow as time allows.

UPDATE: This FoxNews report's headline provides the basic reason for the outcome: "1 juror firmly opposed death penalty for theater shooter James Holmes." Here is more:

Nine of the 12 jurors in the Colorado theater shooting trial wanted to execute James Holmes, but one was steadfastly against the death penalty and two others wavering, a juror told reporters after the verdict was announced.

Because the 12 jurors failed to unanimously agree that Holmes should be executed, he will be sentenced to life in prison without parole for the 2012 attack on a midnight screening of a Batman movie in Aurora that also left 70 injured.

"Mental illness played into the decision more than anything else," said the woman, who would not give her name. "All the jurors feel so much empathy for the victims. It's a tragedy."

A juror told The New York Times that a fellow juror was solidly opposed to a death sentence. The juror said nine were in favor of the punishment, two were apparently on the fence about the decision. "There was nothing further to discuss at that point," the juror said. "It only takes one."

The verdict came as a surprise. The same jury rejected Holmes' insanity defense, finding him capable of understanding right from wrong when he carried out the attack. It also quickly determined the heinousness of Holmes' crimes outweighed his mental illness in a prior step that brought them closer to the death penalty. There were gasps and tears in the courtroom as the verdict was read. One man from the victim side got up and stormed out after the first one....

Holmes himself stood staring straight ahead as the verdicts were read, showing little emotion, but when he returned to his seat he leaned over to defense attorney Tamara Brady, grabbed her hand with a smile, and said "thank you." Loud sobbing could be heard from the family section, where some sat with their heads in their hands.

The courtroom was also full of first responders, including Aurora police department officers -- some of whom cried along with the families as the verdicts were read. Sandy Phillips, whose daughter Jessica Ghawi was killed by Holmes, shook her head no and then held it in her hands. Ashley Moser, whose 6-year-old daughter died in the attack and who was herself paralyzed by Holmes' bullets, also shook her head and then slowly leaned it against the wheelchair of another paralyzed victim, Caleb Medley....

The defense had argued that Holmes' schizophrenia led to a psychotic break, and that powerful delusions drove him to carry out one of the nation's deadliest mass shootings. At least one juror agreed — a verdict of death must be unanimous. Jurors deliberated for about six and a half hours over two days before deciding on Holmes' sentence.

They reached their decision after the judge granted their request earlier Friday to re-watch a graphic crime scene video taken immediately after the massacre. The 45 minutes of footage, played during the trial, shows 10 bodies lying amid spent shell casings, popcorn and blood.... The jury's final decision came after days of tearful testimony from relatives of the slain.

The case could have ended the same way more than two years ago, when Holmes offered to plead guilty if he could avoid the death penalty. Prosecutors rejected the offer. But the victims and the public might not have ever learned in detail what was behind the shootings had the plea deal been accepted....

Four mental health experts testified that the shooting wouldn't have happened if Holmes weren't severely mentally ill. He was having increasingly palpable delusions that killing others would increase his own self-worth, forensic psychiatrist Jeffrey Metzner said.

August 7, 2015 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13)

US Sentencing Commission proposes guidelines amendments to deal with SCOTUS Johnson ruling

I just finished watching on-line the brief public meeting today of the US Sentencing Commission, and the efficient event tracked closely this on-line notice/agenda.  Ever the efficient agency, within minutes of the conclusion of the meeting, the USSC got up on its website this news release reporting on the Commission's significant actions today:

The United States Sentencing Commission voted today to seek comment on proposed changes to the existing guideline definitions of a “crime of violence.” The proposed changes are primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).

In Johnson, the Supreme Court struck down as unconstitutionally vague a portion of the statutory definition of “violent felony” used in a similar penalty provision in the Armed Career Criminal Act (ACCA). While the Supreme Court in Johnson did not consider or address sentencing guidelines, the statutory language the Court found unconstitutionally vague, often referred to as the “residual clause,” is identical to language contained in the “career offender” sentencing guideline, and other guidelines which enhance sentences based on prior convictions for a crime of violence.

Consistent with Johnson, the proposal would eliminate from the guideline definition of “crime of violence” the residual clause, which provides that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. In addition, the proposal would provide definitions for several enumerated crimes of violence.

“We already see litigation over the impact of Johnson on the sentencing guidelines,” said Judge Patti B. Saris, Chair of the Commission. “In light of uncertainty resulting from the Johnson decision, we feel that it is prudent to begin considering whether, as a matter of policy, the guidelines should also eliminate the residual clause. We want to begin the process of seeking public comment so that the Commission could vote on a guideline amendment as early as possible, perhaps as soon as January 2016. However, this proposal is only preliminary and we look forward to public comment furthering informing us on this complex topic. We also intend to continue to study recidivist enhancements including those based on prior drug convictions in the guidelines throughout the upcoming amendment cycle.”

The Commission also unanimously approved its list of priorities for the coming year. Among its top priorities again is continuing to work with Congress to reduce the severity and scope of certain mandatory minimum penalties and to consider expanding the “safety valve” statute that exempts certain low-level non-violent offenders from mandatory minimum penalties.

“The Commission has taken some steps on its own to reduce federal drug sentences and relieve some of the overpopulation in the federal prisons, but only Congress can make the more fundamental changes needed to address the severity and disparity problems associated with certain mandatory minimum penalties,” said Judge Saris. “We look forward to continuing to work with Congress on this vital issue.”

The Commission will continue to work on several multi-year projects, including an examination of the overall structure of the advisory guideline system, a comprehensive recidivism study, and a review of federal practices relating to the imposition and violations of conditions of probation and supervised release and immigration.

Here are the two key documents released by the Commission on its website today that reflect and detail the summary provided by the press release:

August 7, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Wednesday, August 05, 2015

"Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement"

The title of this post is the title of this notable new paper available via SSRN authored by Donna Coker and Ahjane Macquoid. Here is the abstract:

We demonstrate that among the many negative results of hyper-incarceration is the risk of increased domestic violence.  In Part I, we describe the growth of hyper-incarceration and its racial, class, and gender disparate character.  This growth in criminalization has been fueled by racist ideologies and is part of a larger neoliberal project that also includes disinvestment in communities, diminishment of the welfare state, and harsh criminalization of immigration policy. We place the dominant crime-centered approach to domestic violence in this larger neoliberal context.

The well-documented harms of hyper-incarceration -- collateral consequences that limit the economic and civic opportunities of those with criminal convictions; the emotional and economic harms to families of incarcerated parents; prison trauma and the deepening of destructive masculinities; the weakening of a community’s social structure, economic viability, and political clout -- produce harms that research demonstrates are tied to increased risks for the occurrence of domestic violence.

Anti-domestic violence advocates have responded to neoliberal anti-poor and anti-immigrant policies with two strategies: exceptionalizing domestic violence victims and expanding the reach of VAWA.  These strategies are likely to become less tenable in the current political climate.  We argue for a more inclusive political alignment of anti-domestic violence organizations with social justice organizations that addresses the larger structural inequalities that fuel violence.  A key part of that alignment is opposition to hyper-incarceration.

August 5, 2015 in Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, August 03, 2015

Two distinct notable tales of crimes and punishment via the Grey Lady

The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment: 

August 3, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Prisons and prisoners, White-collar sentencing | Permalink | Comments (1)

Friday, July 31, 2015

Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter

Download (8)I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case.  Here are the details:

Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....

Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits.  Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.”  Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.

In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court.  A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009.  The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses.  It prompted one of the largest food recalls in U.S. history.

Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....

“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...

“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....

Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.

Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.

Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.

Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.

July 31, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Thursday, July 30, 2015

What accounts for decline in federal white-collar prosecutions (and should we care)?

The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:

Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.

The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.

During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.

The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).

The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.

White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.

July 30, 2015 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Tuesday, July 28, 2015

Federal authorities grant parole to spy Jonathan Pollard after 30 years in prison

As reported in this new New York Times story, headlined "Jonathan Pollard, Spy for Israel, to Be Released on Parole in November," a high-profile defendant who committed his crimes before the federal system abolished parole has now benefited from the reality that life sentences in the past frequently just meant a long period before parole eligibility. Here are the details:

Jonathan J. Pollard, who was sentenced to life in prison in 1985 for passing classified documents to the Israeli government, will be released on parole in November after 30 years in prison, a government panel decided on Tuesday. Mr. Pollard’s lawyers announced the decision of the United States Parole Commission on Tuesday afternoon, and officials at the Department of Justice confirmed that Mr. Pollard had been granted parole.

Mr. Pollard, 60, had been scheduled for mandatory parole in November, but could have been kept in prison for years longer if the United States government had objected to his release, citing concerns about an ongoing threat to national security.

Last week, officials for the Department of Justice signaled that they would not object to Mr. Pollard’s release if the United States Parole Commission determined that he should leave the prison in North Carolina where he is being held. “The Department of Justice has always maintained that Jonathan Pollard should serve his full sentence for the serious crimes he committed, which in this case is a 30-­year sentence, as mandated by statute, ending Nov. 21, 2015,” Marc Raimondi, a spokesman for the department, said in a statement....

White House officials have denied that Mr. Pollard’s imminent release — something that Prime Minister Benjamin Netanyahu of Israel and others in the country have demanded for years — is an attempt to placate the Israelis in the wake of the Iran deal. “Mr. Pollard’s status will be determined by the United States Parole Commission according to standard procedures,” Alistair Baskey, a spokesman for the National Security Council, said last week. “There is absolutely zero linkage between Mr. Pollard’s status and foreign policy considerations.”

July 28, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, July 27, 2015

Making the case that sentencing reform should (and must) include "violent" offenders

Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders.  Here I will provide links to and snippets from these pieces while suggesting both should be read in full:

In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":

The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.

The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....

Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.

Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.

In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":

It’s true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama’s claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.

Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.

In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.

But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.

That’s what made Obama’s commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.

July 27, 2015 in Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (10)

Saturday, July 25, 2015

Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers

Download (7)One aspect of the modern death penalty that always irks me is the all-too-common reality that some of the very worst-of-the-worst murderers often get the help of some of the very best-of-the-best defense lawyers (and almost always at taxpayer expense).  As I write this post, there are literally tens of thousands of federal drug prisoners desparate to get the help of any lawyer to help them prepare a decent clemency petition.  But, as this local article highlights, white supremacist mass murderer Dylann Roof now is going to be represented in federal court by one of the very best defense lawyer in nation:  

Legendary death penalty lawyer David Bruck, who has more than 35 years of experience in South Carolina and around the nation representing people accused of heinous killings, has been appointed lead defense lawyer for alleged white supremacist killer Dylann Roof, according to federal court records....

Roof, 21, of the Columbia area, is charged with killing nine African-Americans in June during a prayer meeting at a historic downtown Charleston church, “Mother” Emanuel AME. Evidence against him includes a purported confession, an alleged online manifesto in which he announced his intention to start a race war by going to Charleston and Internet photos on his alleged website of him and his gun.

A federal grand jury in Columbia indicted Roof on Wednesday on 12 counts of committing a hate crime against black victims, 12 counts of obstructing the exercise of religion and nine counts of the use of a firearm to commit murder....

Bruck, 66, has the kind of experience Roof needs, lawyers familiar with death penalty cases said Thursday. “He’s the total package, versed in the law and quick on his feet at trial. He never screams or yells — he’s a methodical, intentional kind of guy,” recalled Columbia attorney Dick Harpootlian, who as 5th Circuit prosecutor won a death penalty case over Bruck in a 1990s trial, only to lose to Bruck in oral arguments before the U.S. Supreme Court in the same case.

Columbia defense attorney Jack Swerling, who has tried a dozen death penalty cases, said he has consulted Bruck on most of them.  “He’s my go-to guy,” said Swerling, known as one of South Carolina’s best criminal defense lawyers.  “He’s formidable, brilliant, and he is a passionate advocate against the death penalty.  He truly believes it’s not appropriate in any case.  That is his heart and soul.”

The Canadian-born Bruck, who graduated from the University of South Carolina law school and got his start defending S.C. death penalty cases in the early 1980s, helped win a life sentence in the nationally publicized 1995 case of child killer Susan Smith, now in state prison for drowning her children in a Union County lake.  He recently helped defend Dzhokhar Tsarnaev, the Boston Marathon bomber who was sentenced to death in May....

But his record shows that few of his clients are acquitted by juries.  Instead, Bruck concentrates on either getting life sentences during the punishment phase of a capital case, or getting a death penalty overturned on appeal.  Over the years, Bruck has been involved in hundreds of death penalty cases across the country, either as a lawyer or adviser.

Since 2004, Bruck has been director of Washington & Lee University’s death penalty defense clinic, the Virginia Capital Case Clearinghouse.  Before that, Bruck practiced criminal law in South Carolina for 28 years, specializing in death penalty cases....

Most of the crimes Roof has been charged with in both state and federal arenas are death penalty eligible. However, a formal decision to seek the death penalty has not been announced by either state or federal prosecutors.  Death penalty cases are so complex that federal judges appoint defense lawyers knowledgeable in capital punishment law and trials well before a case has been formally declared a death penalty case.

“Judges don’t want to wait on the Justice Department,” said Columbia attorney Johnny Gasser who has prosecuted the only three federal death penalty cases in South Carolina’s modern era. “Judges want to go ahead ... to ensure that the accused is appointed the best legal representation possible.”

Of course, as critics of modern death penalty are right to highlight, not every capital defendant gets great (or even competent) defense representation. In fact, the sad reality in most state capital prosecutions is that poor representation has historically been much more common than top-flight lawyering. But, as we have now seen due to the mass murders committed by Dzhokhar Tsarnaev and Dylann Roof, when federal prosecutors get involved in a capital case, it is far more likely for some of the best lawyers in the country to be involved on the defense side. (This reality is one reason I quite seriously contend that capital punishment should be the (almost) exclusive province of federal prosecutors, and also a reason I half-jokingly suggest murderers should be sure to kill in a way that garners federal attention and triggers federal jurisdiction.)

July 25, 2015 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Tuesday, July 21, 2015

"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"

The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.

In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud.  This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders.  In concluding this initial examination, the Article discusses three observed trends.  First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s.  Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s.  Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.

In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion.  In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly.  In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association. 

July 21, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Friday, July 17, 2015

You be the federal judge: should tax cheating former rep Michael Grimm go to prison?

As previewed by this AP article, headlined "Ex-NY Congressman Grimm Faces Sentencing in Tax Case," a high-profile white-collar defendant is due to be sentenced in federal court today. Here are the basics about the case to enable answering the question posed in the title of this post:

Lawyers for former U.S. Rep. Michael Grimm have asked a judge to spare him a prison term at his sentencing, while prosecutors argue he deserves at least 2 years behind bars for tax evasion. The sentencing Friday in federal court in Brooklyn before U.S. District Judge Pamela Chen follows Grimm's guilty plea late last year to aiding in filing a false tax return — a charge that stemmed from an investigation into the Staten Island Republican's campaign financing.

Prosecutors say the tax fraud began in 2007 after Grimm retired from the FBI and began investing in a Manhattan eatery called Healthalicious.  An indictment accused him of underreporting more than $1 million in wages and receipts to evade payroll, income and sales taxes, in part by paying immigrant workers, some of them in the country illegally, in cash.

Grimm, 45, won re-election in November while fighting the charges, but later resigned. In court papers asking for a sentence of probation, defense lawyers called Grimm's offense "an aberration in an otherwise remarkable life in selfless service of his country," including a stint in the Marine Corps.  They also argued that losing his career in Congress was punishment enough.

Grimm "is tremendously remorseful over his offense," they wrote.  "He understands that his tax violation is not something to be taken lightly, and he is anguished over his wrongdoing and will live with the shame of it the rest of his life."

Prosecutors countered by telling the judge Grimm's record of "falsely minimizing his criminal conduct and impugning anyone who questions him is indicative of an individual who has not come to terms with his own crimes."  The government papers cite a news conference last year outside the courthouse where Grimm called the case "a political witch hunt."  The papers also refer to an episode in which Grimm threatened to throw a local cable TV news reporter off the balcony of the capitol for asking about the campaign financing inquiry.

If there was a formal sentencing enhancement for acting like a pompous ass, I might expect Grimm to be heading to the federal pen. But I would guess that Grimm's ultimate willingness to plead guilty and resign from Congress will help him secure a nonprison punishment in this case.

UPDATE: This local article details that I was wrong in my guess that Grimm would not be sentenced to prison; as the headline explains, "Michael Grimm gets 8 months in prison at sentencing."

July 17, 2015 in Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 16, 2015

Highlighting significant disparities in DUI homicide sentences in Florida

The Miami Herald has this interesting new article highlighting big differences in sentences handed out in Florida when a drunk driver kills.  The piece is headlined "A Florida DUI death conviction means prison — but for how long varies widely," and here are excerpts:

At 20, Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with angry relatives of the dead, a Broward judge slammed her with a 24-year prison term.

Days later, a longtime alcoholic named Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a Liberty City restaurant while driving drunk, killing two church elders. Relatives offered earnest forgiveness. Lawrence got 10 years.

Downstairs on the very same day, in a courtroom with zero television news cameras, Edna Jean-Pierre, 27, took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case. A Miami-Dade judge, Dennis Murphy, sentenced her to four years in prison....

There is a four-year mandatory minimum for a DUI manslaughter conviction in Florida, but as these recent cases show, prison terms vary widely from cases to case and, a Miami Herald data analysis shows, from county to county.

In over 400 fatality cases resolved in Florida since 2012, the statewide average sentence for DUI manslaughter is just under 10 years behind bars, according to a Herald analysis of prison records. Miami-Dade by far had the most cases in that time span, 66, and among the lightest average sentences with convicts serving an average of just over 6 years in prison. In Broward’s 27 cases, defendants in that time span are serving just under 10 years. “Broward has both a reputation and a reality of being harsher than Miami-Dade,” said Miami defense attorney David Weinstein....

Legal experts say the the reasons for the disparity in sentences are complex. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and the desires of a victim’s loved ones. “Victims drive to a good degree what the sentence outcome will be,” said Miami attorney Rick Freedman. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”...

The four-year minimum mandatory term is a recent addition to the law, added in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, a case in which the driver got only three years of probation.

Drivers convicted in fatal hit-and-run crashes — whether alcohol is detected or not — now also face a minimum of four years in prison. Lawmakers in 2014 passed the law, named after Miami cyclist Aaron Cohen, whose death spurred outrage after a Key Biscayne man got only two years behind bars for killing Cohen in the hit-and-run wreck.

Drunk drivers who kill rarely escape at least some prison time, and prosecutors can waive the minimum four years mandatory — like in a highly criticized 2009 case in Miami Beach involving a pro football player. Donte’ Stallworth, who played for five NFL teams, got 30 days in jail and a lengthy probation for killing a pedestrian crossing the MacArthur Causeway. For prosecutors, there was no guarantee of victory at trial — the victim, Mario Reyes, was not in a crosswalk that dark morning. The decision to support the lighter sentence hinged on Reyes’ relatives, who pushed for the deal and also received an undisclosed settlement from Stallworth.

Forgiveness from families can make a difference. In Lawrence’s case, he met with families of the two church elders killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. Miami-Dade Circuit Judge Diane Ward gave him 10 years, by no means a slap on the wrist, but much less than the 34 years he faced had he been convicted at trial.

“You’re dealing with people who are not criminals, not people who went to harm others,” said Assistant State Attorney David I. Gilbert, who oversees traffic homicide cases. “They are average citizens who have made a very serious mistake. Different judges deal with different cases in different ways.” The emotional reaction of relatives also can clash, with some urging leniency and others calling for heavy punishment, Gilbert said.

July 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (7)

Monday, July 13, 2015

Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)

Neil Eggleston, Counsel to the President, has this new White House Blog posting titled "President Obama Announces 46 Commutations in Video Address: 'America Is a Nation of Second Chances'." Here is the text of the posting, with links worth following:

As a former Assistant U.S. Attorney and criminal defense attorney, I'm well acquainted with how federal sentencing practices can, in too many instances, lead nonviolent drug offenders to spend decades, if not life, in prison.  Now, don't get me wrong, many people are justly punished for causing harm and perpetuating violence in our communities.  But, in some cases, the punishment required by law far exceeded the offense.

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.  Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

In a video released today, the President underscored the responsibility and opportunity that comes with a commutation.

The President also shared his thoughts in a personal letter written to each of the 46 individuals receiving a commutation today.

In taking this step, the President has now issued nearly 90 commutations, the vast majority of them to non-violent offenders sentenced for drug crimes under outdated sentencing rules. 

While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.  Tune in tomorrow as the President shares additional thoughts on how, working together, we can bring greater fairness to our criminal justice system while keeping our communities safe in an address to the NAACP.

A list of the 46 lucky individuals receiving clemency today can be found here. A too quick review of the list suggests that the vast majority of those receiving clemency today were convicted of crack offenses, though I did notice a couple of marijuana offenders in the group. 

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, July 12, 2015

What should be made of (and should we respond to) recent urban murder surge?

MurdersThe question in the title of this post is prompted by this lengthy USA Today article headlined "Several big U.S. cities see homicide rates surge." Here are excerpts:

After years of declining violent crime, several major American cities experienced a dramatic surge in homicides during the first half of this year.

Milwaukee, which last year had one of its lowest annual homicide totals in city history, recorded 84 murders so far this year, more than double the 41 it tallied at the same point last year.

Milwaukee Police Chief Edward Flynn said the mounting homicide toll in his city of 600,000 is driven by Wisconsin's "absurdly weak" gun laws – carrying a concealed weapon without a state-issued concealed carry is a misdemeanor in the Badger State — as well a subculture within the city that affirms the use of deadly violence to achieve status and growing distrust of police in some parts of the city.

Milwaukee is not alone.  The number of murders in 2015 jumped by 33% or more in Baltimore, New Orleans and St. Louis. Meanwhile, in Chicago, the nation's third-largest city, the homicide toll climbed 19% and the number of shooting incidents increased by 21% during the first half of the year.

In all the cities, the increased violence is disproportionately impacting poor and predominantly African-American and Latino neighborhoods. In parts of Milwaukee, the sound of gunfire is so commonplace that about 80% of gunshots detected by ShotSpotter sensors aren't even called into police by residents, Flynn said. "We've got folks out there living in neighborhoods, where . . . it's just part of the background noise," Flynn told USA TODAY.  "That's what we're up against."

Criminologists note that the surge in murders in many big American cities came after years of declines in violent crime in major metros throughout the United States.  Big cities saw homicides peak in the late 1980s and early 1990s as crack-cocaine wreaked havoc on many urban areas.

The homicide toll across the country — which reached a grim nadir in 1993 when more than 2,200 murders were counted in New York City — has declined in ebbs and flows for much of the last 20 years, noted Alfred Blumstein, a professor of urban systems and operations research at Carnegie Mellon University in Pittsburgh.  Several U.S. cities —  including Los Angeles, Phoenix, San Diego and Indianapolis — have experienced a decrease in the number of murders so far this year.

Blumstein said the current surge in murders in some big cities could amount to no more than a blip.  "It could be 2015 represents us hitting a plateau, and by the end of the year, nationally, we'll see that murder rates are flat or there is a slight bump up," Blumstein said.

But other experts say the surge in killings suggests that the United States may be nearing a floor in reducing its murder rate as the federal, state and local governments increasingly grapple with tighter budgets.  "Why is there a synchronicity among these cities?" said Peter Scharf, an assistant professor at the LSU School of Public Health whose research focuses on crime. "One reason may be President Obama is broke. Governors like Bobby Jindal are broke, and mayors like (New Orleans' Mitch) Landrieu are broke. You don't have the resources at any level of government to fund a proactive law enforcement."...

In New York City, there were 161 homicides in the city for the first half of 2015 vs. 145 during the first half of 2014.  Shootings in the city rose to 542, from 511 in the same period last year. New York recorded 328 homicides last year, the lowest annual murder toll for the city in more than 50 years. "It's so phenomenally low that it can hardly go in any direction but up," said Blumstein, the Carnegie Mellon analyst....

The homicide toll has risen several other major U.S. cities in the first half of the year, albeit at less dramatic pace. In Philadelphia, murders are up slightly, with the city recording 123 thus far this year compared with 117 at the same point last year. The murder rate, however, is far lower than it was in 2012, when the city had recorded a whopping 187 murders by July 7 of that year.

Dallas has tallied 68 murders so far this, up from 53 in 2014, according to police department statistics. San Antonio counted 53 homicides through June, compared with 43 last year. Minneapolis had 22 murders in the first half of 2015, compared with 15 during the same period last year.

It has often proven remarkably difficult to establish, either historically or in modern times, a strong and dependable causal connection between specific sentencing laws and practices and homicide rates. Consequently, I am not inclined to jump to any quick conclusions concerning what this murder surge might reflect or how policy makers ought to respond is sentencing term.  Indeed, for sentencing fans, the most notable part of this story may be that 2015 murders are down in the two most southern cities in California, the state that has had the most sentencing changes in recent years.

July 12, 2015 in National and State Crime Data, Offense Characteristics | Permalink | Comments (9)

DA planning to charge Boston Marathon bomber with murder under Massachusetts law

As reported in this new Reuters article, a "Massachusetts district attorney plans to bring state murder charges against Dzhokhar Tsarnaev, who has been sentenced to death in a federal trial for a deadly bomb attack on the 2013 Boston Marathon, her office said on Saturday." Here is why:

Middlesex District Attorney Marian Ryan said she would charge Tsarnaev with murdering MIT police officer Sean Collier and for other crimes in the aftermath of the marathon attacks. Ryan said a guilty verdict in Massachusetts could keep Tsarnaev in prison if he successfully appeals his federal convictions.

"When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense," Ryan said in a statement.

July 12, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, July 10, 2015

Evil doc gets 45 years in the federal pen for fraudulent cancer treatments

I noted in this prior post about his upcoming sentencing, I used the term evil to describe the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  Today the doctor learned our federal criminal justuce system's response to his evil deed, as this local press account reports:

A metro Detroit cancer doctor who made nearly $20 million off hundreds of patients suffering from unneeded chemotherapy and other stunningly bad treatments was sentenced today to 45 years in federal prison.

"This is a huge, horrific series of criminal acts that were committed by the defendant," U.S. District Judge Paul Borman said, later adding that Dr. Farid Fata "practiced greed and shut down whatever compassion he had." Borman said the crimes called for "a very significant sentence for very, very terrible conduct."

Fata, 50, who openly wept in court today as he apologized for his actions, admitted to fraudulently billing Medicare, insurance companies and at least 550 patients through misdiagnoses, over-treatment and under-treatment. In some cases, he gave nearly four times the recommended dosage amount of aggressive cancer drugs; in at least one, a patient was given toxic chemotherapy for five years when the standard treatment was six months, according to former patients and experts in court this week.

"I misused my talents... because of power and greed. My quest for power is self-destructive," a sobbing Fata told the court before sentencing. He said he is "horribly ashamed of my conduct" and prays for repentance.

Defense attorney Christopher Andreoff asked Borman to sentence Fata to no more than 25 years in prison, saying even that could be a life sentence because of Fata's health. "Our recommendation will give him nothing more than a chance for release before he dies," Andreoff said.

U.S. Assistant Prosecutor Catherine Dick told the court her office has "has never seen anything like this before. ,,. And that is because of the harm."

"Fata was greedy and he wanted that money," Dick said. "What this defendant did is unquantifiable. There is no way to quantify the suffering." Dick, whose office had asked for 175-year sentence, said patients died in horrible pain from Fata's treatments.

Borman had set the sentencing guidelines to 30 years to life on Thursday based on the charges and circumstances. "My role.. is to impose a sentence sufficient but not greater than necessary," Borman said this morning.

The federal court this week heard accounts of about 22 victims, who shared unthinkable experiences of a healthy adult undergoing chemotherapy and losing nearly all his teeth, of a patient diagnosed with lung cancer when he had kidney cancer, and more. Some statements were read by family members of patients who died. Some patients with no documented iron deficiencies were given overwhelming amounts of iron, while others were given lower-than-needed doses of chemotherapy drugs, experts testified.

U.S. Attorney Barbara McQuade previously called his case the "the most egregious" health care fraud case her office has seen.

Fata pleaded guilty in September to 13 counts of health care fraud, two counts of money laundering and one count of conspiring to pay and receive kickbacks. The case involves $34.7 million in billings to patients and insurance companies, and $17.6 million paid for work Fata admitted was unnecessary.

Prior related post:

July 10, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (6)

Thursday, July 09, 2015

A few (quickie) direct appeal Johnson remands in Sixth and Ninth Circuits

Regular readers know I am (too?) eagerly anticipating all the lower court litigation that seems sure to unfold in the weeks and months ahead in the wake of the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   And now, thanks to some helpful readers and Westlaw, I can report on the first few of what might be called "Johnson sightings" in the circuit courts.

Specifically, in these two unpublished opinions handed down earlier this week, the Sixth and Ninth Circuits relied on Johnson to remand sentencing claims to district courts: US v. Darden, No. 14-5537 (6th Cir. July 6, 2015) (available here); US v. McGregor, No. 13-10384 (9th Cir. July 7, 2015) (available here).  The Darden ruling is the more notable of these two remands because the defendant was not appealing application of ACCA but rather the issue was "whether one of Darden’s previous convictions qualifies as a 'crime of violence”' under the residual clause of § 4B1.2(a)(2)" of the US Sentencing Guidelines. Here is how the Sixth Circuit panel quickly justified a remand:

In Johnson v. United States, No. 13-7120 (U.S. June 26, 2015) (slip op. at 10, 15), the Supreme Court held that the identically worded residual clause of the Armed Career Criminal Act is void for vagueness.  Compare U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).  We have previously interpreted both residual clauses identically, see United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009); United States v. Houston, 187 F.3d 593, 594–95 (6th Cir. 1999), and Darden deserves the same relief as Johnson: the vacating of his sentence.  Indeed, after Johnson, the Supreme Court vacated the sentences of offenders who were sentenced under the Guidelines’ residual clause.  United States v. Maldonado, 581 F. App’x 19, 22–23 (2d Cir. 2014), vacated, 576 U.S. __ (2015); Beckles v. United States, 579 F. App’x 833, 833–34 (11th Cir. 2014), vacated, 576 U.S. __ (2015). The same relief is appropriate here.

Critically, the vacating of these sentences on appeal does not entail the certainty of a win for the defendant upon return to the district court. But it does highlight that Johnson is likely, at the very least, to get many defendants still pressing related sentencing claims on direct appeal the important first opportunity to get back in front of the district court for a new round of proceedings.

Some prior posts on Johnson and its possible impact:

July 9, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.  Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety.  From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes.  Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable.  Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer.  In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code.  The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown.  It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General.  It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing.  Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime.  The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation.  It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders.  The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs.  These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency.  The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies.  In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss.  More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Prior related post:

July 9, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Tuesday, July 07, 2015

You be the judge: what federal sentence for evil cancer doctor?

Download (3)A few weeks ago, I was discussing with my kids whether they thought some humans were innately evil.  In any such discussion, it might make sense to bring up the story of the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  The doctor's federal sentencing began this week, and this AP story provides an overview of the proceedings and basic information to enable any would-be judges to suggest sentences for the doc in the comments:

Patients of a Detroit-area doctor received "stunning" doses of a powerful, expensive drug that exposed them to life-threatening infections, an expert testified Monday as a judge heard details about a cancer specialist who fleeced insurance companies and harmed hundreds of people.

Dr. Farid Fata is headed to prison for fraud and other crimes. But U.S. District Judge Paul Borman first is hearing from experts and former patients about the extent of his scheme to reap millions of dollars from Medicare and other health programs.

Nearly three dozen ex-patients and family members, many dressed in black, chartered a bus to attend the hearing, which could last days. Some will testify Tuesday."This is a small fraction of the people this guy has hurt," said Terry Spurlock, 52, of Holly, who had three more years of treatments after a tumor on his neck disappeared. "He gave me so much treatment, it stopped my immune system."

Fata, 50, pleaded guilty last fall to fraud, money laundering and conspiracy. The government is seeking a 175-year prison sentence, while the Oakland County man is asking for no more than 25 years.

The government said 553 people have been identified as victims, along with four insurance companies. There were more than 9,000 unnecessary infusions or injections. "There is an aggressive approach to treating cancer. This was beyond. This was over the top," said Dr. Dan Longo, a Harvard medical professor and deputy editor at the New England Journal of Medicine, who testified Monday as a $400-an-hour expert for prosecutors after examining 25 patient files, a tiny portion of Fata's practice.

Longo was asked about patients who were given a drug called Rituximab, which can weaken the immune system if overused. It is typically given eight times for aggressive lymphoma, but one patient got it 94 times. Another got it 76 times.... Later, he told the judge that "all the files I looked at had problems, but I would not say all the treatment was inappropriate."

It was the first time that many former patients had seen Fata in months, if not years. He has been in custody since his 2013 arrest. He wore a white dress shirt and dark suit in court.

"I wanted to knock that smirk off his face," said Geraldine Parkin, 54, of Davison, who[se] husband, Tim, has survived non-Hodgkin lymphoma but has other chronic problems because of excessive treatments. "He has a lot of anger," Parkin said.

July 7, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, July 06, 2015

Florida prosecutors (for suspect reasons?) seeking 2.5 years in prison for sex-on-beach guy

As previously discussed in prior posts linked below (starting with this one), a couple engaged in some consentual, but seemingly inappropriate, behavior on a public beach lead to a state criminal conviction and a seemingly extreme potentially mandatory imprisonment term for the fellow involved who had a criminal record.  This local article, headlined "Man convicted of sex on the beach in Bradenton Beach learns his punishment Monday," reports on where matters stand today on the morning of the (gentle?)man's scheduled sentencing:

The notorious Bradenton Beach sex-on-the-beach case is back in court Monday.

In a case that drew national and international attention, Jose Caballero, the man caught video having sex with a woman on Cortez Beach last July, will learn his punishment, after a jury found him and Elissa Alvarez guilty of two counts of two counts each of lewd and lascivious behavior. Prosecutors said soon after the verdicts were announced that they would not seek the maximum possible punishment: 15 years.

Alvarez, who didn't have a prior criminal record, in May was sentenced to time served since her arrest July 20, and required to register as a sex offender.

Prosecutors said last month they will recommend that Caballero, who previously served 8 years in prison for cocaine trafficking, be sentenced to 2 1/2 years in prison. He is currently in the Manatee County jail awaiting sentencing.

The tougher punishment, they said, is warranted because of Caballero's behavior before he was arrested on the beach. "We had a real good tone of what to give Ms. Alvarez after the case was over in terms of the testimony that came out, which created a vast difference in the demeanor that Mr. Caballero reacted to the fellow beachgoers versus the demeanor of Ms. Alvarez and how she reacted," said Assistant State Attorney Anthony DaFonseca, after Alvarez was sentenced.

Though I can understand, somewhat, why Caballero's criminal history might prompt prosecutors to seek a somewhat tougher sentence than his co-defendant received, I do not quite understand how the female defendant's "good tone" and distinct reaction justifies such an extreme different in recommended sentences. Ultimately, because I know very little about Florida sentencing law, I am unable to say with certainty that there is something problematic about the Florida prosecutors' recommended sentence here. But I do know 30 months is prison would be a pretty steep price to pay for some sandy sex.

July 6, 2015 in Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (19)

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, June 24, 2015

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Saturday, June 20, 2015

The Economist explains "how to make America’s penal system less punitive and more effective"

Download (7)This notable new piece from the print edition of The Economist, headlined "Jailhouse nation: How to make America’s penal system less punitive and more effective," provides advice from across the pond about how the US ought to reform its criminal justice system to address mass incarceration.  Here are excerpts:

More and more Americans accept that the harm caused by mass imprisonment now exceeds its benefits.  Hillary Clinton, whose husband’s 1994 crime bill filled many a cell, has now changed her mind.  On the right, fiscal conservatives decry the burden on taxpayers, while Christians talk of mercy.  Rick Perry, a former governor of Texas and a Republican presidential candidate, boasts of his record of closing three prisons in his state.  Nationwide, the incarcerated population appears to have plateaued; it should be sharply reduced.

A good start would be to end the war on drugs, which would do less harm if they were taxed, regulated and sold in shops, not alleys, as marijuana is in Colorado and Washington state.  In fact, the drug war is already ebbing: in 1997 drug offenders were 27% of all prisoners; now they are around 20%. That could be cut to zero if drugs were legalised.

The next step would be to amend or repeal rules that prevent judges from judging each case on its merits, such as state and federal “mandatory minimum” sentences and “three strikes” rules that compel courts to lock up even relatively minor repeat offenders for most of their lives.  New York has dramatically reduced its state-prison population this way. Prosecutors there have in effect been told to limit the number of people they imprison, giving them an incentive to lock up only the most dangerous. Prosecutors have long had huge discretion in which charges they bring; those in New York now use police intelligence to help them decide.  If the man in the dock seems relatively harmless, they go easy on him; if they know him to be a career criminal who has remained free because he intimidates witnesses, they throw the book at him. Crime has fallen in New York. There has been no backlash among voters.

Reducing the prison population to European levels is probably impossible, for America is still a much more violent place, even if most districts are reasonably safe.  There are roughly 165,000 murderers in American state prisons and 160,000 rapists. If America were to release every single prisoner who has not been convicted of killing or raping someone, its incarceration rate would still be higher than Germany’s.

But still, America does not need to lock up every violent criminal for as long as it does — which is longer than any other rich country. Some 49,000 Americans are serving life without the possibility of ever being released.  (In England and Wales the number is just 55.) Such harshness is unnecessary. A 50-year sentence does not deter five times as much as a ten-year sentence (though it does cost over five times as much).  Money wasted on long sentences cannot be spent on catching criminals in the first place, which is a more effective deterrent.

Reform is hard. Prosecutors and judges are often elected in America; many woo votes by promising to be tougher than their predecessors. Politicians who are seen to be soft on crime run a risk....

Nonetheless, the big fall in crime in the past two decades means that Americans are now less afraid than they were, and more open to reform. Californians voted last year in a referendum to downgrade several non-violent felonies to misdemeanours.  Other states are experimenting with better education in prisons (so that ex-convicts have a better chance of finding work), and drug treatment or GPS-enabled ankle bracelets as alternatives to incarceration.  Some are also trying to improve prison conditions, not least by curbing assaults and rapes behind bars. The aim of penal policy should be harm reduction, not revenge.  Tighter gun laws might help, because guns can turn drunken quarrels into murders; alas, that is politically improbable for now.  There is no single fix for America’s prisons, but there are 2.3m reasons to try.

June 20, 2015 in Drug Offense Sentencing, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (5)

Friday, June 19, 2015

"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"

BildeThe title of this post is the headline of this intriguing new article from an independent paper in Vermont.  Here is how the lengthy article gets started:

Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."

Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.

"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."

The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."

Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.

Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.

Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.

Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."

June 19, 2015 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 18, 2015

SCOTUS unanimously rules for federal defendant on mens rea issue in McFadden CSA case

The US Supreme Court has just handed down its opinion in the Federal criminal case of McFadden v. US, No. 14-348 (S. Ct. June 18, 2015) (available here).  Justice Thomas wrote the opinion for the Court, which garnered no dissents but generated a short concurrence by the Chief Justice.  The Court's opinion begins this way:

The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U.S.C. § 802(32)(A), and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law, §813.  The Controlled Substances Act (CSA) in turn makes it unlawful knowingly to manufacture, distribute, or possess with intent to distribute controlled substances. § 841(a)(1).  The question presented in this case concerns the knowledge necessary for conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue.

We hold that § 841(a)(1) requires the Government to establish that the defendant knew he was dealing with “a controlled substance.”  When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity.  The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “‘controlled substance analogue.’” § 802(32)(A).  Because the U. S. Court of Appeals for the Fourth Circuit approved a jury instruction that did not accurately convey this knowledge requirement, we vacate its judgment and remand for that court to determine whether the error was harmless.

June 18, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, June 09, 2015

You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?

I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence.  But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries.  This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts: 

After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.

Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.

Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”

Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....

At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.

Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.

A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.

One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.

The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.

Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.

June 9, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions

DownloadThis lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:

As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.

The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.

It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.

“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.

In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.

“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”

Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”

Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.

The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.

“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....

Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.

Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....

Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....

Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”

“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...

Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.

He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.

To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.

“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”

June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Monday, June 01, 2015

Via similar 7-2 rulings, SCOTUS narrows reach of federal criminal and deportation statutes in Elonis and Mellouli

Via excerpts and links from this post at How Appealing I can effectively summarize the interesting Supreme Court work on criminal justice issues this morning:

The Court today issued four rulings in argued cases.

1. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Mellouli v. Lynch, No. 13-1034. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined....

4. And Chief Justice John G. Roberts, Jr. delivered the opinion of the Court in Elonis v.United States, No. 13-983. Justice Alito issued an opinion concurring in part and dissenting in part. And Justice Thomas issued a dissenting opinion....

In early news coverage, The Associated Press has reports headlined "High court throws out conviction for Facebook threats";... "Justices reverse deportation of man over minor drug crime"; ... Richard Wolf of USA Today reports that "Violent threats on Facebook may be OK, justices rule"; ... and "Justices sock it to Justice Department over drug deportations."

As the title of this post suggests, there are considerable similarities between what the Justices did in both Melloni (a low-profile immigration case) and Elonis (a high-profile federal criminal case). In both setting, via a 7-2 vote with Justices Thomas and Alito dissenting, the Court adopted a norrower construction of an applicable federal statute based on concerns that the federal government's (and lower courts') interpretation goes too far (for deportation purposes in Melloni, for criminal prosecution in Elonis).  The rulings and opinions are quite limited in both cases, and Justice Alito's dissent in Elonis fittingly laments this reality at its outset: 

In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

I hope and expect to have more to say about the lengthy opinions in Elonis in future posts, although I suspect that the ruling will ultimately prove more consequental for what it failed to do and say than for what it actually does and says.

June 1, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)