Monday, September 08, 2014

Former SAC trader Mathew Martoma gets lengthy (but way-below guideline) federal prison term of nine years for insider trading

As reported in this new USA Today piece, headlined "Ex-SAC Capital trader gets 9-year sentence," a high-profile white-collar sentencing has resulted in a below-guideline (but still lengthy) prison term for an insider trader. Here are some of the interesting details from today's interesting sentencing in New York federal court:

Former SAC Capital portfolio manager Mathew Martoma was sentenced to a nine-year prison term Monday for his central role in what federal prosecutors called the most profitable insider-trading scheme in U.S. history.  Martoma, a former financial lieutenant to billionaire hedge fund founder Steven Cohen, sat silently, declining to speak before U.S. District Judge Paul Gardephe imposed the sentence during a Manhattan federal court hearing.

The judge also ordered the 40-year-old father of three to forfeit nearly $9.4 million — more than his current net worth — and surrender for imprisonment on Nov. 10.  His attorneys are expected to file an appeal of his Feb. 6 conviction.

Federal jurors found Martoma guilty of conspiracy and two counts of securities fraud after a month-long trial during which the defendant declined to testify.  The case centered on charges that Martoma illegally obtained disappointing results of clinical tests on an experimental Alzheimer's disease drug in 2008 by cultivating relationships with two doctors who were privy to details of the testing outcome.  Martoma then set in motion a $700 million sell-off of SAC Capital stock holdings in shares of Elan and Wyeth, the pharmaceutical firms that developed the drug.  The transactions generated approximately $276 million in profits and avoided losses, along with a nearly $9.4 million 2008 bonus for Martoma.

The sentence imposed by Gardephe was lower than the 188-months-to-235-months range specified in federal sentencing guidelines.  It exceeded the eight-year prison term recommended by probation officials and met prosecutors' request for a sentence higher than that recommendation.

The sentence came after defense attorney Richard Strassberg argued for leniency.... He urged Gardephe to weigh Martoma's devotion to his family and history of helping others. The defense lawyer also filed more than 100 support letters from Martoma's relatives and friends — some of whom were in the courtroom for Monday's sentencing.

The defense team also argued that Martoma was the sole source of financial support for his wife, Rosemary, and the couple's three young children.  "Mathew, as a person, is much more than the charge of insider-trading that has brought us all to this courtroom today," said Strassberg.  He argued that a "just" sentence would consider Martoma's history of charitable acts and helping others.

But federal prosecutor Arlo Devlin-Brown said "It is hard to think of a more significant and brazen instance of insider trading than the case before this court.  The sentence in this case, we submit, must reflect the seriousness of this significant breach."

Gardephe, however, said he had weighed all of the submissions from both sides and studied sentences in other insider trading convictions in New York's Southern federal district.  The judge credited Martoma's charity and other acts of generosity but he said the evidence showed that Martoma went for "one big score" that would provide lifetime security.  "His plan worked, but now he has to deal with the fallout."

Gardephe also referred to Martoma's expulsion from Harvard Law School for falsifying a grades transcript, as well as his subsequent admission to Stanford University's business school without disclosing the expulsion.  Saying "there is a darker side" to Martoma's character, Gardephe added, "I do believe there is a connection" to the insider trading episode.  "The common thread is an unwillingness to accept anything but the top grade ... and the highest bonus."

September 8, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt

Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader.  Here is the text of Judge Noonan's Hardrick concurring addition:

I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.”  See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense.  It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty?  Better to stop a crime’s commission than mop the consequences.

Judge Reinhardt's comment are a bit more extended, and here are excerpts:

Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals.  I do not agree, however, that advertising the legal consequences is a solution to the problem.  Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct.  Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now.  Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution.  See 18 U.S.C. § 2252(b)(1).  Nor are mandatory sentences of fifteen to forty years for a second.  See id.....

I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography.  I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.

There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far.  Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children.  All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.

September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Pregame preview of another high-profile insider-trading sentencing in NYC

This new BloombergBusinessweek article, headlined "Mathew Martoma, Convicted SAC Trader, Gets Sentenced Today," provides these basics about a not-so-basic, white-collar sentencing scheduled in federal court today:

Around 9 pm on November 8, 2011, a pair of FBI agents pulled up outside of Mathew Martoma’s home in Boca Raton, a 6,200 square-foot mansion tucked behind a circular driveway and lavish palm trees.  They were there to talk to Martoma about insider trading at SAC Capital, his former employer and one of the world’s largest hedge funds.

The SEC, the FBI and the U.S. Attorney’s Office in Manhattan were five years into a far-reaching investigation of illegal trading among hedge funds across the country, and just three weeks before, Raj Rajaratnam, the co-founder of the $7 billion fund the Galleon Group, had been sentenced to a record 11-year prison term for insider trading.

The government was fairly confident that Martoma would lead them to an even bigger prize: one of the richest men in the world and the founder of SAC, Steven A. Cohen.  From that point on, nothing proceeded quite as the government expected. Instead, Martoma is scheduled to be sentenced today in what prosecutors describe as “the most lucrative insider trading scheme ever charged.”

After an investigation, an arrest and a high-profile five-week trial in January, Martoma was convicted of insider trading in two drug stocks, Elan and Wyeth, and earning profits and avoiding losses of $275 million while working as a portfolio manager at SAC. The government alleged that he spoke with Cohen right after learning about important drug trial results, and that Cohen traded the two stocks as well. Martoma’s was the eighth conviction of a former or current SAC employee of insider trading....

From the FBI’s perspective, Martoma was an ideal candidate for cooperation. He has three young children and a beautiful, devoted wife, all of whom he would be separated from during a long prison term. He was also fired from SAC after failing to replicate his success in Elan and Wyeth and, the government believed, there was powerful evidence against him. He had no reason to be loyal to his former boss and he had a lot to lose. Still, Martoma baffled everyone by refusing to flip, insisting he was innocent and bringing the government’s determined march toward Cohen to an abrupt stop. Without a witness, any developing case against the hedge fund founder fell apart. Now it is Martoma who faces a sentence of up to 20 years, although it’s likely to be closer to 8.

Cohen was never charged with insider trading, and his life goes on relatively unchanged. Prosecutors indicted SAC in January, 2013, calling the company a “magnet for market cheaters.” The firm agreed to plead guilty and pay a $1.2 billion fine (not including $600 million already pledged to the SEC over Martoma’s trades). A civil case brought by the SEC charging Cohen with failing to supervise his employees has not been resolved. Cohen shut down his hedge fund and transformed his firm into a family office, Point72 Asset Management, which invests his personal fortune.

September 8, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, September 04, 2014

Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges

As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:

Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.

A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.

Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption."  Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."

The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012.  The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans.  They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.

The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify.  His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....

Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses.  Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.

My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.

September 4, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (13) | TrackBack

Wednesday, September 03, 2014

Third Circuit panel splits over whether placing child porn in shared folder constitutes distribution

A Third Circuit panel today split on an interesting question of computer crime law involving child pornography.  Here is how the majority opinion in US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) gets started:

David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography.  At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available.  The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography.  We conclude it does not.  A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.  Accordingly, we vacate Husmann’s conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.

And here is how the dissenting opinion, per Judge Van Antwerpen, gets going:

I cannot join my colleagues in the narrow definition of “distribution” they would apply to child pornography cases.  George Husmann was convicted by a jury of three counts of distributing child pornography pursuant to 18 U.S.C. § 2252(a)(2).  Husmann placed images of child pornography into a shared folder accessible to all global users of the peer-to-peer (“P2P”) file sharing program 360 Share Pro.  Once in the shared folder, a search term and a click of a mouse allowed access to these images by any user on the system.  My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.” This is certainly not what Congress had in mind and following the majority’s approach, the crime of distribution would not be complete until a police officer downloaded the image.  This is a distinction without merit.  Given the plain meaning of the term, the intent of Congress, the advancement of technology, as well as a series of recent sentencing cases, the placing of child pornography into a shared file accessible over a peer-to-peer file sharing network, alone should constitute “distribution.”  Husmann took all the necessary steps to make a product available to the public in a publically accessible location, and whether or not a party took that product is irrelevant to both the purpose of § 2252 and to his role as distributor.  For that reason, the conviction of Appellant George Husmann for “distribution” under 18 U.S.C. § 2252 should be upheld.

September 3, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

"Life sentence for buying marijuana?"

CA6K4VHLThe question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU.  An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront."  And this companion piece, headlined "The price of pot," provides this additional preview:

Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.

This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime?  Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.

  And now here are now excerpts from the commentary by  Vanita Gupta: 

Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.

The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....

While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.

We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.

Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.

The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.

But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.

According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.

The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.

As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.

September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

You be the sentencing judge: decades or just years for mistaken home shooting in Detroit? UPDATE: Judge decides decades

This new Detroit Free Press article, headlined "Attorney: Wafer wants to apologize at sentencing today for porch shooting," sets out the basic sentencing arguments being presented to a Michigan judge in a high-profile homicide case. Here are the details: 

Theodore Wafer wants to apologize to the parents of the 19-year-old woman he fatally shot 10 months ago and plans to make a statement during his sentencing this morning. That is what Wafer’s attorney said in a court document asking Wayne County Circuit Judge Dana Hathaway to depart downward from the sentencing guidelines of second-degree murder when she sentences the Dearborn Heights man for killing Renisha McBride.

“He wants to tell the McBride family that he is so sorry for taking their loved one’s life,” defense attorney Cheryl Carpenter said in the document.  “He wishes he could have taken it all back and not opened that door.  He beats himself up for opening the door.”

Wafer, 55, fatally shot McBride on the porch of his home about 4:30 a.m. Nov. 2.  A jury convicted him last month of second-degree murder, manslaughter and using a firearm in a felony.

Prosecutors said they believe Wafer should receive a sentence of 15-25 years in addition to two years for the firearm count and will make their argument in court, said Maria Miller, a spokeswoman for the office. “There are no compelling, objective and verifiable reasons not accounted for in the sentencing guidelines that would justify a downward departure from the guideline range,” prosecutors said in a court document filed last week.

The defense disagrees. Carpenter said in the court document that she anticipates asking for a minimum sentence of four to seven years plus two years for the weapons conviction. Carpenter called the facts and circumstances of the case “more akin to manslaughter than murder.”   Carpenter cited several reasons for the departure, including Wafer’s age, his cooperation with police after the shooting and remorse for McBride’s death....

Gerald Thurswell, the attorney for McBride’s family in a wrongful-death lawsuit against Wafer, said one of McBride’s sisters will give a victim-impact statement during sentencing, and McBride’s father, Walter Simmons, will read a statement from another sister. McBride’s family feels Wafer should spend the rest of his life behind bars, Thurswell said....

The court document filed by the defense said Wafer is “riddled with guilt for his actions” and has been diagnosed with post-traumatic stress disorder. During the trial, prosecutors argued that Wafer was angry, wanted a confrontation, went to the door to scare away neighborhood kids with his gun, shot through a locked screen door and killed McBride, whom they described as an “unarmed, injured, disoriented 19-year-old.”

Wafer, who said he couldn’t find his cell phone and had no land line, testified that he heard banging on his doors, grabbed a baseball bat then his shotgun, opened the front door because he thought someone was going to come inside and fired in self-defense.

The jury didn’t believe self-defense, a juror told the Free Press.  Carpenter said she plans to appeal the conviction.

UPDATE: This CNN report, headlined "Man gets 15-30 years for shooting Michigan teen on his porch," provides the details of the sentencing decision made by the real sentencing judge here. Here is how the report starts:

Theodore Wafer said he was sorry from the bottom of his heart Wednesday for gunning down an unarmed young woman on the front porch of his Michigan home, but a judge said "mistake" was the wrong word to describe a murder and sentenced him to 15 to 30 years in prison.

Wafer, 55, looked down, his lawyer patting him on the back, as Wayne County Circuit Judge Dana Hathaway sentenced him for second-degree murder in the November shooting death of Renisha McBride, 19 -- a racially charged case because the victim was black and Wafer is white.

Wafer had testified that he feared for his life when loud banging startled him awake in the early morning hours of November 2, 2013. He opened his front door and fired a fatal shotgun blast into the face of McBride, who prosecutors say was seeking help after a car accident.

"To the parents family and friends of Renisha McBride, I apologize from the bottom of my heart and I am truly sorry for your loss," Wafer said. "I can only hope and pray that some how you can forgive me. ... From my fear, I caused the lost of a life that was too young to leave this world and for that I carry that guilt and sorrow forever."

Hathaway said it was one of the "saddest cases" she had ever presided over. "I do not believe that you are a cold-blood murderer or that this case had anything to do with race or that you are some sort of monster," the judge said. "I do believe you acted out of some fear but mainly anger and panic and unjustified fear is never an excuse to take someone's life."

Hathaway said she was confident Wafer was remorseful and would likely never commit another crime in his life, but that McBride came to his doorstep seeking help and lost her life. "You made the choices that brought us here," the judge said. "I don't know that you could ever use the word 'mistake' to describe a murder, and a person was murdered."

The defense had argued for a sentence of four to seven years, saying a longer sentence guaranteed that he would never get out of prison alive. But Hathaway said the sentencing guidelines were reasonable for the crime, giving him 15 to 30 years for second-degree murder and two additional years for possessing a firearm while committing the felony.

September 3, 2014 in Offense Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, September 01, 2014

Gendered perspective on Ohio's challenges with opioids and prison growth

As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population.  And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.

Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.

September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, August 31, 2014

"Rational Criminal Addictions"

The title of this post is the title of this intriguing paper now available on SSRN and authored by Manuel Utset. Here is the abstract:

This article argues that repeated criminal misconduct, at least in some areas, has the characteristics of a habit or addiction.  Curiosity or a transient attraction can lead an offender to commit her first crime.  This first infraction will give her a sense of how much she enjoyed it, and whether she has the talent, and stomach, to continue down a path of repeated misconduct.  If the feedback is sufficiently positive, the offender may commit a second crime, and possibly a third.

At some point, the offender will find herself with the opportunity to commit yet another crime, and realize that the immediate disutility of stopping, of going back into a life as a law-abiding citizen, is too great: she may find that the immediate disutility of foregoing a criminal opportunity is too high.  Once the habit takes hold, the offender may continue to commit crimes, even if doing so leads her to suffer large aggregate negative internalities. An offender is thus “addicted to criminal misconduct” if her previous history of misconduct increases the marginal utility of committing a crime in the current period by a sufficient amount; that is, if the immediate disutility from stopping has reached a cut-off point, such that she violates the law notwithstanding the fact that but-for the addiction she would have obeyed the law.

The addicted criminal trades off the heightened immediate disutility from obeying the law against the reduction in total utility due to the negative internalities — including expected sanctions.  After setting forth the rational criminal addiction theory, the article develops a number of legal implications that follow from the theory.

August 31, 2014 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2) | TrackBack

Saturday, August 30, 2014

"The criminalisation of American business"

20140830_cna400The title of this post is the headline of this notable new Economist cover story, which carries the subheadline "Companies must be punished when they do wrong, but the legal system has become an extortion racket." Here are excerpts:

Who runs the world’s most lucrative shakedown operation? The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.

The amounts are mind-boggling. So far this year, Bank of America, JPMorgan Chase, Citigroup, Goldman Sachs and other banks have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds. BNP Paribas is paying $9 billion over breaches of American sanctions against Sudan and Iran. Credit Suisse, UBS, Barclays and others have settled for billions more, over various accusations. And that is just the financial institutions. Add BP’s $13 billion in settlements since the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in some cars, and many more.

In many cases, the companies deserved some form of punishment: BNP Paribas disgustingly abetted genocide, American banks fleeced customers with toxic investments and BP despoiled the Gulf of Mexico. But justice should not be based on extortion behind closed doors. The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism (see [companion] article)....

The drawbacks of America’s civil tort system are well known. What is new is the way that regulators and prosecutors are in effect conducting closed-door trials. For all the talk of public-spiritedness, the agencies that pocket the fines have become profit centres: Rhode Island’s bureaucrats have been on a spending spree courtesy of a $500m payout by Google, while New York’s governor and attorney-general have squabbled over a $613m settlement from JPMorgan. And their power far exceeds that of trial lawyers. Not only are regulators in effect judge and jury as well as plaintiff in the cases they bring; they can also use the threat of the criminal law.

Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.

Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs. Nor is it clear how the regulatory booty is being carved up. Andrew Cuomo, the governor of New York, who is up for re-election, reportedly intervened to increase the state coffers’ share of BNP’s settlement by $1 billion, threatening to wield his powers to withdraw the French bank’s licence to operate on Wall Street. Why a state government should get any share at all of a French firm’s fine for defying the federal government’s foreign policy is not clear....

In the longer term, two changes are needed to the legal system. The first is a much clearer division between the civil and criminal law when it comes to companies. Most cases of corporate malfeasance are to do with money and belong in civil courts. If in the course of those cases it emerges that individual managers have broken the criminal law, they can be charged.

The second is a severe pruning of the legal system. When America was founded, there were only three specified federal crimes — treason, counterfeiting and piracy. Now there are too many to count. In the most recent estimate, in the early 1990s, a law professor reckoned there were perhaps 300,000 regulatory statutes carrying criminal penalties—a number that can only have grown since then. For financial firms especially, there are now so many laws, and they are so complex (witness the thousands of pages of new rules resulting from the Dodd-Frank reforms), that enforcing them is becoming discretionary.

This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective — and potentially corrupt — system of justice in which everybody is guilty of something and punishment is determined by political deals. America can hardly tut-tut at the way China’s justice system applies the law to companies in such an arbitrary manner when at times it seems almost as bad itself.

August 30, 2014 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (9) | TrackBack

Friday, August 29, 2014

Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud

Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient.  But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.

The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners.   Here are snippets that help highlight why:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....

In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.

On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).

The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....

While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation.  This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."

Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court. 

August 29, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, August 27, 2014

Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters

Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute.  The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case.  Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:

A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith).  A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.

At stake in this appeal is whether their hate-crime convictions may stand.  No one questions that the assaults occurred, and only a few defendants question their participation in them.  The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A).  In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults).  Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial.  Burrage v. United States, 134 S. Ct. 881, 887–89 (2014).  Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.

Here is how the dissent, per Judge Sargus sitting by designation, gets started:

This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249.  While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent.  In my view, the majority has adopted an unduly restrictive interpretation of the statute.

Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014).  The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other.  I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless.  This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.

Related prior posts:

August 27, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, August 26, 2014

Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details: 

Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.

Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.

The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed.  The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes.  A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.

To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...

Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.

In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.

The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters.  "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.

In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual.  She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.

Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."

"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.

Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.

The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.

August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 24, 2014

Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?

Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit.  This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit.  Here are excerpts from the Dispatch article providing the backstory:

Are federal sentencing guidelines for possessing child pornography too harsh?  Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them.  My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession.  His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation.  The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense.  The appeals court ordered Graham to resentence the defendant.  But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years.  Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient.  The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday....

Graham says the guidelines for child-porn possession are outdated.  Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way.  Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said....

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.”  Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."

Graham isn’t alone in his contention that the guidelines are outdated.  A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences.  Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”  Just by being found guilty, he said, they face ruined lives, for both themselves and their families.  “They need to stop it,” he said. “The men who are doing this are going to get caught.”

Prior related posts:

August 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, August 19, 2014

"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"

The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III.  Here is the abstract:

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes.  A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants.  The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.

There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants.  Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood.  In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.

Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’”  For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure).  In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.”  Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.

Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205).  This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.

August 19, 2014 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Monday, August 18, 2014

Intriguing account of how Pittsburgh police undermined local crime-fighting efforts

This new article from the Pittsburgh Post-Gazette provide a disconcerting account of how local police can undermine efforts to reduce local crime. The piece is headlined "Professor: Lack of cooperation marred success of Pittsburgh crime-fighting initiative," and here are excerpts:

It was one of the most embarrassing moments of David Kennedy’s career. Mr. Kennedy, a professor at the John Jay College of Criminal Justice at the City University of New York who has spent two decades studying crime and policing and worked with hundreds of departments across the country, was brought to Pittsburgh in 2008 by then-Mayor Luke Ravenstahl to help launch an initiative that has been credited with stemming killings in Cincinnati, Boston, Chicago, New Orleans, Philadelphia and elsewhere.

“It is the most effective intervention with respect to gun violence or homicide that we have in any portfolio,” said Mr. Kennedy, also an author and co-chairman of the National Network for Safe Communities, an initiative of John Jay’s Center for Crime Prevention and Control. “This works better than everything.”

Part of implementing the Pittsburgh Initiative to Reduce Crime — a combination of outreach to gangs and other violent groups, a swift police crackdown on group members when shootings happen and the provision of social and job-related services to offer members a way out — required mining the knowledge of veteran street officers to identify the people most likely to become victims or perpetrators of shootings.

A team from the University of Cincinnati was brought in to spend a few days with those police officers to map out the city’s violence-prone populations, but the team was sent packing in short order after the police refused to share information, Mr. Kennedy said. “I set this thing up and wound up with my face planted in the mud,” he said, calling it an unprecedented level of resistance that command-level officers orchestrated.

A 2011 city-commissioned report on PIRC that the University of Pittsburgh conducted also found the police largely ignored the Cincinnati academics’ research, which identified 35 “violent groups” in Pittsburgh and determined 69 percent of the city’s homicides from 2007 to early 2010 were “group-related.”

“The Pittsburgh police department was absolutely the most condescending and aggressively uncooperative agency I have encountered,” he said.  “They would not share information; they would not provide information. They would not allow any outsiders in.” It made no difference that PIRC was a mayoral initiative with hundreds of thousands of dollars in City Council funding.  “They actively rejected it and made no secret of that,” Mr. Kennedy said.  “My read on this was the police bureau saying, ‘City Hall is trying to tell us what to do, and we’re not going to do it.’  And they won that fight.”

Not long after, Mr. Kennedy gave up.  “I said to them, ‘This is a sham. I’m not going to be involved in it anymore,’” he said.  Ever since, PIRC has failed to fulfill its potential to reduce the number of bodies hitting city streets, though it has had some success in connecting people with job services and education, said City Councilman Ricky Burgess, who helped bring the program to the city.

“We’re losing lives because the police do not want to make preventing homicides by gaining community confidence its primary concern,” he said, noting that the Allegheny County Department of Human Services embraced many of the same principles Mr. Kennedy promoted in a June report.  “We need a philosophical change in the way the city of Pittsburgh police operates.”

Two weeks ago, Mayor Bill Peduto, who was elected last year, and his new public safety director, former Pennsylvania state trooper and FBI special agent Stephen Bucar, were flanked by acting police Chief Regina McDonald at a news conference to address a spike in killings....  PIRC was barely mentioned during the news conference, during which most of the focus was on 13 new officers assigned to walk beats in Homewood and other East End neighborhoods, three more detectives moving to the bureau’s homicide division and the role of the community in reporting crime and coming forward as witnesses....

Sonya Toler, the city’s public safety spokeswoman, refused requests to interview Chief McDonald, former Public Safety Director Mike Huss, who remains on the city payroll, and Deputy Chief Paul Donaldson about PIRC.  Jay Gilmer, PIRC’s civilian coordinator and sole employee, who is paid about $49,000 a year, referred all questions to Ms. Toler, who said some of the past friction was the result of restrictions on sharing information outside of law enforcement circles.  She said while it “may be true” that police resistance stifled PIRC’s effectiveness, dwelling on the past won’t make the program better in the future....

The mayor and Mr. Bucar have said they favor revamping PIRC, with Mr. Bucar pledging during his council confirmation hearing that the police “will become engaged” in the program.  Mr. Bucar has assigned Officer Michelle Auge to be his liaison to the police bureau, which will include PIRC work, in a move that is already yielding results, Ms. Toler said....

Whatever happens, the existing Pittsburgh program needs more than a tweak, Mr. Kennedy said.  “They need to blow it up and start all over again,” he said.  “PIRC did not fail because it won’t work in Pittsburgh.  PIRC failed because the police bureau failed to let it succeed.”

August 18, 2014 in National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, August 16, 2014

Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges.  But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges.  This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment): 

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city.  Democrats said the indictment underscores Perry’s insider dealing and he should step down.  Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April.  McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said.  Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew.  I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

August 16, 2014 in Celebrity sentencings, Mandatory minimum sentencing statutes, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Thursday, August 14, 2014

Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable

In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:

We conclude that the district court imposed a substantively unreasonable sentence in this case.  Dautovic’s offense conduct was egregious.  A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes.  At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury.  Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified.  A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings atsentencing were consistent with the jury’s verdict.  The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months.  The district court found that Dautovic overreacted during the arrest and beating of Bonds.  It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count.  It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family.  The district court acted within its discretion when it decided to vary downward based on Dautovic’s history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.

The district court’s justification for the variance fails to support the degree of the variance in this case.  To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic’s sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic’s....  Dautovic’s offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury.  Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient.  The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, August 12, 2014

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Sex Offender Laws Have Gone Too Far"

The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:

[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry.  It worked.  Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address.  In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.

The upshot, experts say, is that the United States has the most draconian sex registration laws in the world.  As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....

Is the American approach to sex registration working?  Who goes on the registries, for how long, and for what kinds of crimes?  Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?

In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling.  “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us.  “But the world has changed since then.”  What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

The logic behind the past push for registries rested on what seem like common sense assumptions.  Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender.  Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.

The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises.  For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years.  “It’s a myth.”

Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time.  Which number experts prefer within that range depends on how they define recidivism.  If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions.  And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate.  Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates.  Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.

And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....

In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.

August 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack