Thursday, October 15, 2015
"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot
The title of this post is the headline of this new Washington Post opinion piece authored by Charles Lane, plus a little commentary from me. The piece serves as fitting fact-check of recent sloppy statements about prison populations by Prez candidates (as do other recent similar pieces via PolitiFact and The Marshall Project). But, like lots of commentary highlighting the statistical realities of modern prison populations, I fear Lane here underplays the potential import and impact of significant changes in state and federal drug laws. Here are excerpts, with my extended commentary at the end:
It seems that no presidential debate this year would be complete without denunciations of the drug laws, which, it is alleged, result in long prison terms for thousands of people, disproportionately African Americans, who are guilty only of low-level offenses, thus fueling “mass incarceration.”
At the last Republican debate, on Sept. 16, former Hewlett-Packard chief executive Carly Fiorina charged that “two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related.”
Apropos of former Florida governor Jeb Bush’s admitted youthful marijuana use, Sen. Rand Paul (Ky.) observed that “there is at least one prominent example on the stage of someone who says they smoked pot in high school, and yet the people going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t.”
When Democrats faced off Tuesday night, Sen. Bernie Sanders (I-Vt.) said he is for marijuana legalization, “because I am seeing in this country too many lives being destroyed for nonviolent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana.”
“I agree completely with the idea that we have got to stop imprisoning people who use marijuana. . . . We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana,” the front-running former secretary of state, Hillary Clinton, chimed in.
Too bad this bipartisan agreement is contradicted by the evidence. Fiorina’s numbers, for example, are exaggerated: In 2014, 46 percent of all state and federal inmates were in for violent offenses (murder, rape, robbery and aggravated assault), according to the latest Justice Department data. And this is a conservative estimate, since the definition of violent offense excludes roughly 30,000 federal prisoners, about 16 percent of the total, who are doing time for weapons violations.
Drug offenders account for only 19.5 percent of the total state-federal prison population, most of whom, especially in the federal system, were convicted of dealing drugs such as cocaine, heroin and meth, not “smoking marijuana.”
Undeniably, the population of state prisons (which house the vast majority of offenders) grew from 294,000 in 1980 to 1,362,000 in 2009 — a stunning 363 percent increase — though it has been on a downward trajectory since the latter date. But only 21 percent of that growth was due to the imprisonment of drug offenders, most of which occurred between 1980 and 1989, not more recently, according to a review of government data reported by Fordham law professor John Pfaff in the Harvard Journal of Legislation. More than half of the overall increase was due to punishment of violent offenses, not drugs, Pfaff reports....
Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom. Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. In short, ending the “war on drugs” is not quite the panacea for mass incarceration that politicians imply.
Marijuana legalization could help reduce arrest rates, to be sure; and to the extent fewer people get busted for smoking pot, that would, indeed, cut down on the resulting undue negative personal and social consequences. Otherwise, the bipartisan consensus in favor of looser drug laws is just the latest political free lunch, served up by politicians who would rather discuss anything except real public policy trade-offs.
Republicans and Democrats alike are propounding the crowd-pleasing notion that we can have less incarceration — saving the country billions of dollars and international shame — without risking an increase in violent crime, or other harms. In truth, if we released all 300,000 drug offenders from state and federal prison, the U.S. incarceration rate would still be far higher than it was three decades ago, and far higher than the rates of other industrial democracies.
The only way to lower it dramatically would be to reduce the frequency and duration of imprisonment for violent crimes, while continuing to reduce violent crime itself. If any of the candidates has a plan to do that, he or she should speak up.
Lane is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes. But he fails to ackowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes. American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.
Regular followers of this blog likely recall the case of (my former client) Weldon Angelos, which provides a clear example of a low-level marijuana dealer serving decades in federal prison based technically on "violent firearm crimes." The modern federal drug war explained why an informant (himself fearing a long federal drug sentence) told authorities Angelos was a major drug dealer, why federal prosecutors threated Angelos with over 100 years mandatory imprisonment if he did not forgo his right to a trial after te informant arranged to buy marijuana from Angelos, and why even after his acquittal on some charges, a federal judge was bound by law to give Angelos 55 years in federal prison for having firearms nearby as he sold the informant a relatively small amount of marijuana.
I bring all this up because, again to recall American history, four score ago the ending of alcohol Prohibition indeed did itself significantly help to "reduce violent crime itself." I am cautiously hopeful that ending marijuana prohibition will help have the same effect in the modern era. More broadly, I sincerely believe we would further reduce violent crime by ending a drug war that relies on state violence and condemnation and investing monies saved (and taxes earned) into a significant public-health commitment to address serious drug addictions using evidence-based treatments.
Wednesday, October 14, 2015
Charles Koch Institute produces great set of short videos urging crimnal justice reforms
I am really intrigued, and really impressed, by this new set of one-minute videos created by the the Charles Koch Institute under the banner "Criminal Justice and Policing Reform Explainer." Here are the topics and links to the videos, and I have embedded the one on mandatory minimums below:
Saturday, October 10, 2015
Via the National Review, an unintended parody of various arguments against modest federal sentencing reform
I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo. Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.
I bring all this up as a prelude to spotlighting this notable new National Review commentary by Andrew McCarthy, headlined "Keep Minimum Sentencing, to Discourage Criminals." This lengthy piece, in my view, reads almost like a parody (unintentionally, I assume) of many arguments against federal sentencing reform that Bill and some other prosecutors make much more soundly in other settings. Here are some few passages from the piece that strike me as especially cringe-worthy:
Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties. For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply ... life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”
The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists. Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses ...[but a] judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.
Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion....
Even if many judges were not instinctively sympathetic to arguments in favor of harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.
It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row. So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.
It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.
Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.
Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.
Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.
If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”
I share the closing sentiment that a problem need to be accurately diagnosed to be solved. But there are so many problems in the arguments before that sentiment, I almost feel unable to unpack them all in the space. What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about "gut feeling," that it is problematic judges consider "every bounce of the due-process ball," and that sentencing would be better if more attentive to every "call for a harsh sentence from the peanut gallery." Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a "sociopath" that must be subject to severe punishment because surely they have committed "many more crimes than they are prosecuted for."
All these curious contentions aside, I find it especially remarkable how McCarthy concludes after saying nothing is wrong with the harsh mandatory drug and gun sentences created in recent decades by Congress and applied (inconsistently) by federal prosecutors. He says the "main" problem is other federal criminal laws created in recent decades by Congress and applied (inconsistently) by federal prosecutors which creates, so he claims, a "nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed." In other words, it seems, when it comes to imposing punishment for crimes, we should continue to distrust modern judges and trust old mandatory sentencing laws created by Congress in the 1980s, but when it comes to defining what is a crime, we should not trust Congress because somehow they enact criminal laws (but not "severe sentences") that are not really "a reflection of society’s values."
I trust I am not the only one who see how backward a lot of what is being said here. But apparently the folks at the National Review see reasonable logic or some kind of wisdom here that perhaps requires spending more time in the Beltway to understand. Or maybe I just need to go re-watch Breaking Bad, which NR has extolled, so I can better understand the "sociopaths" federal judges cannot be trusted to sentence properly because they have the wrong "gut feeling" while concerned with "every bounce of the due-process ball."
Tuesday, October 06, 2015
The title of this post is the title of this notable paper about a notable federal sentencing provision authored by Miriam Baer and now available on SSRN. Here is the abstract:
This essay, written for the Wayne Law Review’s 2014 Symposium on white collar crime and sentencing, examines the rising popularity of the “sophisticated means” enhancement under Section 2B1.1 of the United States Sentencing Guidelines. Over the past decade, the rate at which federal courts apply the enhancement in criminal fraud cases has more than tripled.
This Essay considers several possible explanations for the enhancement’s increasing prevalence, including the possibilities that: (i) fraud offenders as a whole have become more sophisticated; (ii) federal prosecutors are investigating and charging more sophisticated frauds; and (iii) the enhancement’s meaning has, over time, gradually expanded to include additional conduct, a phenomenon I refer to as “sentencing creep.” With this final explanation in mind, the Essay concludes with some practical advice for reinvigorating the enhancement as a useful sorting device.
"Man 'too high' on marijuana calls Austintown police for help"
The title of this post is the headline of this (amusing?) article from a local Ohio paper that almost reads like a story from The Onion. Here are the details:
Township police were called to a home Friday night by a man who complained he was “too high” after smoking marijuana. According to a police report, authorities were called to the 100 block of Westminister Avenue at about 5:20 p.m. Friday by a 22-year old male who had smoked the drug.
The officer who responded to the home could hear the man groaning from a room.The officer then found the man lying “on the floor in the fetal position” and “was surrounded by a plethora of Doritos, Pepperidge Farm Goldfish and Chips Ahoy cookies,” the report said. The man also told police he couldn’t feel his hands.
A glass pipe with marijuana residue, two packs of rolling papers, two roaches and a glass jar of marijuana were recovered from the man’s car after he gave the keys to police.
The man declined medical treatment at the home Friday night. Austintown police have not charged the man in the incident as of late Monday morning.
I am tempted to react to this story by wondering aloud if the cop-calling, worried-weed consumer has twice enjoyed (white?) privilege by (1) thinking he could seek help from the police for his pot problem, and (2) for not yet getting arrested or charged for his various crimes. But rather than turn this story serious, I will instead just request that readers help me imagine funnier headlines for this tale of foolishness.
Sunday, October 04, 2015
Three of Kettle Falls Five get sentenced to real federal time for marijuana grow in Washington state
As reported in this AP article, headlined "Marijuana growers sentenced to federal prison," a high-profile federal marijuana prosecution, in a state in which marijuana slaes are now legal, culminated in sentencing late last week. Here are the details:
The three remaining defendants in the case of the so-called Kettle Falls Five were sentenced to federal prison on Friday for growing marijuana in a state where both the medical and recreational use of marijuana are legal under Washington laws.
The defendants are known as the Kettle Falls Five because of their original number. They were convicted earlier this year of growing marijuana on their rural property near Kettle Falls, in violation of federal law.
Rolland Gregg was sentenced Friday to 33 months in prison, followed by three years of probation. His wife Michelle Gregg, 36, was sentenced to one year in prison and three years of probation. Rhonda Firestack-Harvey, 56, who is Rolland Gregg's mother, was also sentenced to one year in prison and three years of probation.
All three remain free pending the outcome of appeals.... The case had been closely watched nationally by marijuana activists, who criticized the federal government for prosecuting marijuana growers in a state where cannabis is legal.
Assistant U.S. Attorney Earl Hicks rejected the notion that the defendants were growing the pot for their own medical use. "This is a for-profit marijuana grow," Hicks said. "It has nothing to do with medical marijuana."
Prosecutors contended the defendants grew more than 100 pounds of marijuana in 2011 and 2012, far in excess of their personal needs. Defense attorneys argued for sentences of probation only. "This was not a for-profit marijuana grow," said attorney Phil Tefleyan, who represented Rolland Gregg.
Larry Harvey was excused from the case when he was diagnosed with pancreatic cancer last year and has since died. Family friend Jason Zucker accepted a plea deal from federal prosecutors and testified for the government at trial in exchange for a 16-month penalty.
The remaining three were convicted in March by a federal jury of growing between 50 and 100 marijuana plants on their rural property, which was searched by investigators in 2012. Since then, Washington has also legalized the recreational use of marijuana. But growing and possessing marijuana remains a crime under federal laws.
The defendants did not dispute that they grew marijuana, but contended they grew less than the government alleged. The jury exonerated them of more serious charges of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.
Saturday, October 03, 2015
"Why Don’t Courts Dismiss Indictments? A Simple Suggestion for Making Federal Criminal Law a Little Less Lawless"
The title of this post is the title of this notable Green Bag article authored by James Burnham. Here are excerpts from the article's introduction:
Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. It is a recurring theme in academic literature and it featured prominently in Justice Kagan’s recent dissent in Yates v. United States, where she described “the real issue” in the case as being “overcriminalization and excessive punishment in the U.S. Code.”... [Many commentators] often jump directly to the Constitution as the solution to this problem, specifically the Due Process Clause and an emphasis on fair notice as a way to narrow vaguely worded statutes.
That is a good idea, but it overlooks a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law–making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints. Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.
Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.
Thursday, October 01, 2015
Basic elements of Sentencing Reform and Corrections Act of 2015
As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015). Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:
Here ais the full text of the summary document:
Reforms and Targets Enhanced Mandatory Minimums for Prior Drug Felons: The bill reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provision, but it allows those enhanced penalties to be applied to offenders with prior convictions for serious violent and serious drug felonies.
Broadens the Existing Safety Valve and Creates a Second Safety Valve: The bill expands the existing safety valve to offenders with more extensive criminal histories but excludes defendants with prior felonies and violent or drug trafficking offenses unless a court finds those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism. The bill also creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum. But defendants convicted of serious violent and serious drug felonies cannot benefit from these reforms.
Reforms Enhanced Mandatory Minimums and Sentences for Firearm Offenses: The bill expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing. The bill also raises the statutory maximum for unlawful possession of firearms but lowers the enhanced mandatory minimum for repeat offenders.
Creates New Mandatory Minimums for Interstate Domestic Violence and Certain Export Control Violations: The bill adds new mandatory minimum sentences for certain crimes involving interstate domestic violence and creates a new mandatory minimum for providing weapons and other defense materials to prohibited countries and terrorists.
Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively
Provides for Prison Reform based on the Cornyn-Whitehouse CORRECTIONS Act: The bill requires the Department of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs. Eligible prisoners who successfully complete these programs can earn early release and may spend the final portion (up to 25 percent) of their remaining sentence in home confinement or a halfway house.
Limits Solitary Confinement for Juveniles in Federal Custody and Improves the Accuracy of Federal Criminal Records
Provides for a Report and Inventory of All Federal Criminal Offenses
WOWSA!! And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!! Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.
Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago. Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!
UPDATE: The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.
October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Bipartisan federal sentencing reform bill due to emerge from Senate today
In part because October is my favorite month, I am likley to remember that a potentially historic federal sentencing reform bill emerged from behind the Senate negotiating curtain on the first day of October 2015. This New York Times article, headlined "Senators to Unveil Bipartisan Plan to Ease Sentencing Laws," previews some of what we should expect to see in the bill. Here are excerpts:
A long-awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.
The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.
The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.
According to those familiar with the still-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.
The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.
The authors also took steps to deny any new leniency to those who committed serious violent crimes or drug felonies. And the bill would put some new mandatory minimum sentences in place for those convicted of interstate domestic violence or providing weapons or other material to terrorists or certain countries.
Lawmakers hoping for more sweeping changes did not win the acrosstheboard reductions in mandatory minimum sentences they had sought when the negotiations began. They compromised to win the backing of Mr. Grassley, who in the past has been critical of broad efforts to reduce prison time.
If the authors wish to push the legislation through this year, it will require an aggressive effort and a decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to make the measure a priority. The bill is most likely to be considered by the Judiciary Committee this month, with a committee vote possible on Oct. 22. Congressional consideration could also be kicked into 2016....
Backers of a criminal justice overhaul were not aware of the details of the legislative deal, which senators were trying to keep under wraps until the announcement Thursday, but they welcomed the movement toward getting the debate in the public arena.
“This sounds good to us,” said Mark Holden, general counsel for Koch Industries, which has led conservatives in calling for new sentencing laws and is part of the bipartisan Coalition for Public Safety. “It is a good place to start, and hopefully this will be the impetus that gets things moving.” Holly Harris, the executive director of the U.S. Justice Action Network, another part of the coalition, noted that “the devil is in the details.”
I share the sentiments that this sounds like a pretty good deal and that the devil is really in the details. But, absent the details looking very ugly, I am going to be a vocal and aggressive advocate for this bill because it seems like the only federal sentencing reform proposal with any realistic chance of getting to President Obama's desk while he is still President Obama.
Tuesday, September 29, 2015
"Heroin, Murder, and the New Front in the War on Drugs"
The title of this post is the headline of this lengthy and effective new Vice article. Here are excerpts:
It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....
But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....
So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....
So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.
The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.
The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...
In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.
Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."
Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...
State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.
In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....
State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.
Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.
In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....
In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."
Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.
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.
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.
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:
- Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
- You be the federal judge: how long a prison term for peanut executives convicted of selling salmonella-tainted food
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.
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:
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.)
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.
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:
From The Altantic here by Ta-Nehisi Coates, "The Black Family in the Age of Mass Incarceration: American Politicians are now eager to disown a failed criminal-justice system that’s left the U.S. with the largest incarcerated population in the world. But they've failed to reckon with history. Fifty years after Daniel Patrick Moynihan’s report 'The Negro Family' tragically helped create this system, it's time to reclaim his original intent."
From The Huffington Post here by Steven Brill, "America's Most Admired Lawbreaker: Over the course of 20 years, Johnson & Johnson created a powerful drug, promoted it illegally to children and the elderly, covered up the side effects and made billions of dollars. This is the inside story."
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.
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:
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.
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.
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.
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.
Saturday, August 22, 2015
Is it fair I assume Hillary Clinton committed politically-motivated federal crimes because I think her husband did as Prez?
The 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).
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."
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:
- Subway pitchman and his "Jared Foundation" subject to serious child porn investigation
- What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?
"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.
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.
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.
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.
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:
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.
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:
Friday, July 31, 2015
Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
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.
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.
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.”
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.
Saturday, July 25, 2015
Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
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.)
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.
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."
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.
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.
Sunday, July 12, 2015
What should be made of (and should we respond to) recent urban murder surge?
The 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.
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.
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:
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:
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
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:
Tuesday, July 07, 2015
You be the judge: what federal sentence for evil cancer doctor?
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.