Wednesday, November 12, 2014
Federal judge wonders if marijuana sentencing should be impacted by state reforms
As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:
U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."
"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.
Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.
"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?
"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.
November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, November 10, 2014
Huzzah, Huzzah... all crime goes down again in 2013 according to new FBI data
As reported in this official press release, the "estimated number of violent crimes in the nation decreased 4.4 percent in 2013 when compared with 2012 data, according to FBI figures released today." What great news, and here is more:
Property crimes decreased 4.1 percent, marking the 11th straight year the collective estimates for these offenses declined.
The 2013 statistics show the estimated rate of violent crime was 367.9 offenses per 100,000 inhabitants, and the property crime rate was 2,730.7 offenses per 100,000 inhabitants. The violent crime rate declined 5.1 percent compared to the 2012 rate, while the property crime rate declined 4.8 percent.
I will have a lot more to say about these data later today, but for now I just want to celebrate the latest great news on crime rates.
Friday, November 07, 2014
Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"
Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:
The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent. The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.
Fish are funny. First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even. The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices. And this wasn’t all the Scalia show. Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.
But overcriminalization is not. Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution. Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it. At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.” (Again, to great laughter.) In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion. Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause. Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.
And neither is severe sentencing. Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction. A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available. The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.” He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.
Overcriminalization exacts real hams. I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context). Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement. This is what so many of the Justices were reacting to during the argument. But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law. The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.
Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner. According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail. The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.
Thursday, November 06, 2014
Impact of California's Prop 47 already being felt ... by defense attorneys and police
This local article from California, headlined "Scramble to implement Prop 47 begins," spotlight the impact already being felt by the passage of the biggest criminal justice reform initiative of Election 2014. Here are the (already remarkable) basics:
Just hours after the last ballot returns were counted, the phone lines of defense attorneys across the state began to light up Wednesday morning with calls from inmates.
With the passage of Proposition 47, simple drug possession and property crimes valued under $950 are now misdemeanors, effective immediately. Punishment means, at the worst, up to a year in jail, no longer prison. It also means up to 10,000 inmates serving time for those crimes can begin to apply for shortened sentences, a process many were eager to get started.
“This morning at 8 a.m., we took 10 attorneys and put them on the phones,” said Randy Mize, a chief deputy at the Public Defender’s Office. “They were taking 200 calls an hour from inmates in county jail. These are people asking us to file petitions on their behalf.”
The scramble to put the new law into practice was starting to touch all corners of the criminal justice system Wednesday, from the City Attorney’s Office, which will have to handle 3,000 extra cases a year, to police officers who will have new protocols to follow for certain arrests.
At Juvenile Hall Wednesday morning, six kids were released because they had felony charges that are now classified as misdemeanors under Proposition 47, and legally minors can’t be detained longer than an adult would, authorities said. “I think the roll out today started fairly smoothly,” Mize said. He attributed much of that to the fact that criminal justice leaders from around the county — including prosecutors, public defenders, the sheriff and probation officers — have been meeting for the past month to prepare for this day....
The law is intended to ease prison overcrowding, and put most of the estimated $200 million saved in prison costs annually into drug and mental health treatment programs to staunch recidivism. The majority of law enforcement officials around the state and the county are skeptical it will have the desired effect, and fear less time behind bars will only contribute to the revolving door of the criminal justice system. But, officials say, they will do their best to make it work. “It’s still a work in progress,” Sheriff Bill Gore said Wednesday. “Our primary concern is clearly the public’s safety.”...
Law enforcement officers were reminded of the new law in police lineups around the county. As of Wednesday, six crimes that used to be felonies are now misdemeanors: drug possession for personal use, as well as five property crimes valued below $950, theft, writing bad checks, forgery, shoplifting and receiving stolen property.
One of the biggest differences when arresting someone on a misdemeanor, rather than a felony, is that the crime must have occurred in the officer’s presence, or be witnessed by a citizen willing to sign an affidavit saying so. Several training memos have been distributed in the past few weeks to prepare deputies on such arrests, Gore said....
The Public Defender’s Office has already identified about 200 state prisoners and 1,800 other offenders either in jail or under the supervision of probation who might be eligible to be resentenced under Proposition 47. The first set of petitions are expected to be filed within the next day or so, with priority given to those in custody. Once the application is filed in court, the District Attorney’s Office will review it to make sure the person is eligible, then a judge will OK it and hand down a new, shorter sentence. The process could be as quick as a few weeks for the first group of offenders, said Mize, with public defender’s office.
“There will be a few cases that the DA thinks should be excluded, and we don’t, and those will be litigated,” Mize said. There may also be a few offenders that prosecutors think are too dangerous to be released, and those cases will be argued. Inmates who can’t be resentenced are those who have prior convictions such as murder, attempted murder and violent sex crimes.
The public defender’s office has also identified nearly 200,000 other people who have been convicted since 1990 — that’s as far back as its database goes — of the crimes reclassified under Proposition 47. They can now apply to have their records show misdemeanor rather than felony convictions. Statewide, that could apply to millions of people. Said Mize, “It will certainly take a lot more work in the short term.”
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
- New York Times editorial makes the case for California's Prop 47
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
November 6, 2014 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates
As discussed in prior posts here and here, yestderay the Supreme Court heard oral argumentsin two notable federal criminal justices cases, Yates v. United States and Johnson v. United States. I am hoping soon to find the time to read the full arguments transcripts in both cases (which are available here and here). Fortunately, thanks to my old pal Professor Ed Lee and this post at ISCOTUSnow, I do not have to read the transcripts in order to have an informed guess as to who will prevail. Here is why:
I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose....
Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.
This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.
But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.
My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.
The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.
This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner — a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.
Previous related posts:
- SCOTUS hears argument in two notable federal criminal justice cases this week
- Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
- SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"
- "Fish, Shotguns and Judicial Activism"
Wednesday, November 05, 2014
"Fish, Shotguns and Judicial Activism"
The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:
Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.
The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.
The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....
Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.
In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.
For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.
Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.
The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.
The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?
You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?
The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”
The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.
Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism.
Some previous related posts:
- SCOTUS hears argument in two notable federal criminal justice cases this week
- Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
- SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"
California sentencing reform initiative Prop 47 wins big getting almost 60% support
As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners." Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":
Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47. As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.
The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons. That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.
This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.
Tuesday, November 04, 2014
Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
In this post this morning, I noted that the Supreme Court is finally due to get back around to working on important criminal justice issues with oral arguments scheduled in Yates v. United States, No. 13-7451 and in Johnson v. United States, No. 13-7120. I now see that the always great SCOTUSblog now has up these two new posts providing detailed argument previews:
On Johnson from Rory Little, "Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?"
On Yates from Lyle Denniston, "Can plain language be vague?"
In addition, as religious blog readers may remember, another view of the ACCA issues in Johnson was covered in this space a few weeks ago via this SCOTUS preview guest-post by Professor Stephen Rushin titled "Measuring the Dangerousness of Felonies for Sentencing Purposes."
SCOTUS hears argument in two notable federal criminal justice cases this week
Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws. Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:
Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.
Issue: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.
Sunday, November 02, 2014
"Crashing the Misdemeanor System"
The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:
With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.
Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.” Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts. Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively. As a result, many cases end in a quick guilty plea with little or no jail time. The “broken windows theory” suggests that everyone benefits from such efficiency.
Yet the effect of misdemeanor convictions is anything but minor. A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail. But this conviction can, and does, lead to eviction from public housing. It can, and does, pose a bar to showing “good moral conduct” for citizenship. And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks. The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life. Mass misdemeanor processing thus harms the individual, his family, his community, and society.
Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself. Such a “crash” of the criminal justice system would not be dramatic. Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight. The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing. Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.
Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis. Part II describes the potential role for defense counsel in such an institutional response. Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system. Part IV explores arguments for and against efforts to crash the existing misdemeanor system.
Tuesday, October 28, 2014
Back from dead, fugitive fraudster gets 30 years in federal pen
As reported in this AP piece, a "former Georgia investment adviser was sentenced to 30 years in prison Tuesday for committing fraud that fueled a bank's collapse, cost investors millions of dollars and turned the accused banker into a fugitive who was ultimately — and mistakenly — declared dead." Here is more on this notable white-collar case:
Aubrey Lee Price, 48, returned to U.S. District Court for sentencing after he pleaded guilty in June to bank, wire and securities fraud. Price lost much of the $40 million he raised from about 115 clients at his private investment firm. Prosecutors say he also misspent, embezzled and lost $21 million belonging to the Montgomery Bank & Trust in rural southeast Georgia, where Price served as bank director.
Price vanished in June 2012, a few weeks before the bank closed with its assets and reserves depleted, and he left rambling letters saying he planned to jump off a ferryboat. In December 2013, a year after a Florida judge declared him dead at his wife's request, Price was captured in a routine traffic stop near Brunswick on the Georgia coast.
Price cut a plea deal with prosecutors that called for a maximum of 30 years in prison and in exchange for his guilty pleas to three fraud counts. Price also agreed to pay tens of millions in restitution for bank and investor money that he lost, despite having convinced the court to appoint him a lawyer because he had no money to hire one.
Price gave rambling speech in front of the judge in which he acknowledged responsibility but also blamed other managers at the bank for its collapse. Still, he pledged to help recoup money, and officials say he is cooperating with their efforts to collect restitution. "These clients that are here today, and those who are not here, it's important for them to understand I'm trying my best to help them get their money back," Price said in court....
At his plea hearing June 5, Price told the judge he lied to clients and gave them phony financial statements to cover his tracks as he lost their money in speculative trading and other high-risk investments. He said his flight from the financial mess left him depressed. He said he tried smoking marijuana and methamphetamine and had tasted cocaine, but mostly self-medicated with the prescription amphetamine Adderall. Price said he also adopted at least five aliases, including Jason Rollins and Javier Martinez....
The plea agreement settled federal charges pending against Price in Georgia and New York. Prosecutors agreed to drop 16 related bank fraud counts in Georgia plus charges in Miami related to the Coast Guard's search for Price.
Saturday, October 25, 2014
Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider
As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case. Here are the details:
The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.
In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.
The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....
The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept. Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.
Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....
But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....
“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....
The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013. The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence. But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated. Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.
The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.
Friday, October 24, 2014
Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion
As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:
In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.
Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”
The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.
Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.
A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”
The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....
Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....
Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”
Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.
The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.
October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, October 22, 2014
Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?
The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:
So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).
Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....
To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.
Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.
She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...
But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.
Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”
Sound public policy must be based on facts, not radical unsafe, and dangerous theories.
I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."
The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.
That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate. (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.) I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues. But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.
October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, October 21, 2014
Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:
The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully. Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....
During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name. He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013. But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.
Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment. He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters. "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration. As a family, we are ready to support and guide Oscar as he serves his sentence."
The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."
The prosecution had asked for a minimum prison sentence of 10 years for Pistorius. After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing. Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....
Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.
She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."
In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."
The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.
In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.
On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.
Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.
The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.
Previous related post:
October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, October 19, 2014
Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth
As highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:
The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.
Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.
That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....
The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.
Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.
But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."
The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.
Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."
Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."
Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.
The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.
Thursday, October 16, 2014
Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders
One of my (many) wonderful students alerted me to this notable UK press piece reporting on an interview with famous law author John Grisham who had some interesting (and likely-to-be-controversial) comments about tough sentencing for those who download child porn. The article is headlined "John Grisham: men who watch child porn are not all paedophiles," and here are excerpts:
America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country's sky-high prison rates. Mr Grisham, 59, argued America's judges had "gone crazy" over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and — he added — those who had viewed child porn online.
"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week. "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."
The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a "good buddy from law school" who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing. "His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. And it said '16-year-old girls'. So he went there. Downloaded some stuff — it was 16 year old girls who looked 30.
"He shouldn't ’a done it. It was stupid, but it wasn't 10-year-old boys. He didn't touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people — sex offenders — and he went to prison for three years."
"There's so many of them now. There's so many 'sex offenders' — that's what they're called — that they put them in the same prison. Like they're a bunch of perverts, or something; thousands of ’em. We've gone nuts with this incarceration," he added in his loft-office in Charlottesville, Virginia.
Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise. "I have no sympathy for real paedophiles,” he said, "God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that's what they're getting," adding sentencing disparities between blacks and whites was likely to be the subject of his next book.
There are currently some 2.2m people in jail in the US — or more than 750 per 100,000 population — which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population. However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.
Since 2004 average sentences for those who possess — but do not produce — child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission. However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.
A provocative article in the libertarian magazine Reason headlined "Looking v Touching" argued last February that something was "seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children". And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.
UPDATE: As I expected, John Grisham's child porn sentencing comments has stirred controversy and he has already issued a formal apology. This CNN story provides the basics of the early aftermath:
Those comments and the nature in which Grisham discussed the very serious issue of child pornography incited a flood of hurt, disappointed and angry reactions from fans.
"The day that you came out in an interview and said that watchers of child porn get too stiff of a penalty for it (you said 10 years was too much) makes you someone that I cannot support nor no longer want to read," a reader named Kendra Benefield Lausman shared on Grisham's Facebook page; another posted that she's taken her entire Grisham library to her "burn barrel" with the intent to set the books on fire.
"How do you think child porn is made?" a poster named John Kelly asked on Grisham's page. "Someone is still getting hurt you imbecile. I'm sad to say that I will never purchase, nor consume, one of your books ever again. I am disgusted."
After the uproar began, Grisham issued an apology.
"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."
That may not be enough for some of his former followers. "You clearly said in the interview that people (like your drunk friend) who look at child porn don't deserve severe punishment," Facebook user Raylene Jolly Wheeler posted in response to Grisham. "Not sure how you can backtrack that statement."
Tuesday, October 14, 2014
Does the Constitution limit the age at which a juve killer can be tried as an adult?
The question in the title of this post is promopted by this AP story emerging from Pittsburgh sent my way by a helpful reader. The story is headlined "Boy, 10, Charged As Adult In Death Of 90-Year-Old Woman," and here are the details:
A 10-year-old boy has been charged as an adult in the beating death of a 90-year-old woman over the weekend in northeastern Pennsylvania. Prosecutors in Wayne County said the boy was visiting his grandfather, the caretaker of Helen Novak, in Tyler Hill on Saturday, when county emergency responders got a call reporting her death.
District Attorney Janine Edwards said in a statement that the boy’s mother brought him in to the state police barracks at Honesdale the same afternoon and reported that her son had told her that he had gone into the woman’s room and she yelled at him. The boy told his mother that “he got mad, lost his temper and grabbed a cane and put it around Novak’s throat,” police said. Advised of his rights and interviewed by a trooper, he said he “pulled Novak down on the bed and held the cane on her throat and then punched her numerous times,” authorities said.
State police said the boy told them that he went to his grandfather and told him that the woman was “bleeding from her mouth” but denied he had harmed her, but later told him that he had punched the woman and put a cane around her neck. Police said an autopsy done Monday at Wayne Memorial Hospital in Honesdale indicated blunt force trauma to the victim’s neck, and the death was ruled a homicide....
The boy was charged as an adult with criminal homicide and aggravated assault, with the prosecutor’s office noting that the crime of homicide “is specifically excluded from the juvenile act” and therefore “a juvenile who commits the crime of homicide is charged as an adult.” The boy was held without bail pending an Oct. 22 preliminary hearing.
I am pretty sure that, prior to the Supreme Court's Eighth Amendment ruling in Miller, this 10-year-old killer would have be facing a mandatory LWOP sentence under Pennsylvania law. Now, I believe, state law provides only a mandatory minimum of 20 or 25 years for this kind of killer. Especially for those still troubled by the Miller ruling and eager to have some juve killers get LWOP sentences (such as folks talking here over at Crime & Consequences), I wonder if they would assert that even a kid still in elementary school could and should never even have a chance to live outside a cage for a crime like this.
Thursday, October 09, 2014
New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"
As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:
A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses. That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question. You can find the full survey results here (PDF); mandatory minimums are question 17.
“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses. During that time, countless lives have been ruined and countless families destroyed. The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.
The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”
Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed. When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.
Wednesday, October 08, 2014
Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement
A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here). The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:
Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry. Once convicted, they serve a term of imprisonment, and then are again deported. The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a “fast-track” plea agreement that binds the government and the defendant, but not the district judge.
The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources. It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal. The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines. What is the incentive for the defendant to take this deal? The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “united front” in favor of a reduced sentence to the district judge. If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.
Paul Gabriel Morales Heredia (Morales) was one such defendant. But in Morales’s case, the orderly and efficient plea-bargaining process did not play out as intended. The government extended the promise of a reduced prison term with one hand and took it away with the other. The prosecutor’s recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history, adding for good measure his personal opinion that “defendant’s history communicates a consistent disregard for both the criminal and immigration laws of the United States.” Morales’s counsel timely objected and sought specific performance of the plea agreement. The district judge denied this relief on the irrelevant ground that the prosecutor’s statements did not influence him. We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.
Monday, October 06, 2014
Reviewing California's debate over lowering sentences through Prop 47
I have noted in a few prior posts some of the details of California's Proposition 47, which seeks to reduce penalties for certain offenders convicted of low-level property and drug crimes. This new New York Times article, headlined "California Voters to Decide on Sending Fewer Criminals to Prison," discusses the current state of debate over Prop. 47. Here are excerpts:
Twenty years ago, amid a national panic over crime, California voters adopted the country’s most stringent three-strikes law, sentencing repeat felons to 25 years to life, even if the third offense was a minor theft. The law epitomized the tough-on-crime policies that produced overflowing prisons and soaring costs.
Now California voters appear poised to scale back the heavy reliance on incarceration they once embraced, with a measure that would transform several lower-level, nonviolent felonies into misdemeanors punishable by brief jail stays, if that, rather than time in a state penitentiary. The referendum on Nov. 4 is part of a national reappraisal of mass incarceration.
To its advocates — not only liberals and moderates, but also an evangelical conservative businessman who has donated more than $1 million to the campaign, calling it “a moral and ethical issue” — the measure injects a dose of common sense into a justice system gone off the tracks.
“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said George Gascón, the San Francisco district attorney and a former police chief who, bucking most of his counterparts around the state, is the main sponsor along with a former police chief of San Diego. For the large numbers of nonviolent offenders with mental health or substance abuse problems, Mr. Gascón said, “Incarceration doesn’t fix the problem.”
California has already been forced by federal courts to trim its prison population because of inhumane crowding, which it did mainly by sending more offenders to county jails. Two years ago, in a previous referendum, voters took the worst sting off the three-strikes law, shortening the sentences of those whose third crime was a minor one.
The new initiative would have wider effects, altering penalties for low-level theft and drug-possession crimes that result in felony convictions, and sometimes prison terms, for thousands of nonviolent offenders each year. Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails....
The proposals here are modest compared with changes recently taken by other states to curb prison growth. But Proposition 47 has drawn harsh attack from law enforcement officials, including most district attorneys and the association of police chiefs, which calls it “a dangerous and radical package” that will “endanger Californians.”...
In a poll in September conducted by the Public Policy Institute of California, 62 percent of voters said they supported the initiative, and only 25 percent said they opposed it. Proponents like Mr. Gascón and Darrell Steinberg, the Democratic president pro tem of the State Senate, say this shows that the public is far ahead of timid legislators, necessitating the unusual step of a ballot initiative....
But opinions could change, especially if the two sides mount television campaigns in coming weeks. One of the most outspoken opponents, Shelley Zimmerman, the chief of police in San Diego, has already gone on the offensive. “Virtually all of law enforcement is opposed,” Chief Zimmerman said. “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories. She and other opponents have zeroed in on two details: Stealing a gun worth less than $950 and possessing date-rape drugs would no longer be automatic felonies....
So far, supporters of the proposal have a large financial advantage, raising more than $4 million as of last week, half of which had been used to get the measure on the ballot, compared to less than $300,000 for the opponents, with most of that donated by a law enforcement officers’ association. Large donations in support have come from the Open Society Policy Center, a Washington-based group linked to George Soros; the Atlantic Advocacy Fund, based in New York; Reed Hastings, the chief executive of Netflix; and Sean Parker, the former president of Facebook.
But the largest single donor is B. Wayne Hughes Jr., a conservative Christian businessman and philanthropist based in Malibu. In one of the most tangible signs yet of growing concern among conservatives about the cost and impact of incarceration, Mr. Hughes has donated $1.255 million....
Even if Proposition 47 passes, California will still lag behind many other states, including some that are politically conservative, in reforms that have achieved prison cuts with no increase in crime, said Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts. Just looking at the dollar threshold for theft or forgery felonies, he noted, Mississippi recently raised its cutoff to $1,000, and South Carolina to $2,000. “This reform may be modest,” Mr. Gascón acknowledged. “But California led the way early on in draconian sentencing, and now I’m hoping that these reforms, too, will have an impact on the state and the nation.”
Prior related posts:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
Thursday, October 02, 2014
Up and down the east coast, notable white-collar federal sentencings
My usual review of the week's sentencing news with Google's help turned up a number of noteworthy federal while collar sentencing stories. These three especially cuaght my eye:
From Delaware, via "Delaware multimillionaire gets prison," we learn: " Former eBay executive Christopher Saridakis of Greenville, Delaware, was sentenced to 15 months in prison for insider trading Wednesday by a U.S. District Court judge. Saridakis, 45, tipped off two family members and two friends in 2011 to the pending sale of GSIC – where he was chief executive officer – to eBay days before the sale was announced. The tip allowed those individuals to realize more than $300,000 profit, according to prosecutors."
From Florida, via "Ponzi schemer Rothstein’s former law partner sentenced to nearly three years," we hear: "The wife and children of Stuart Rosenfeldt said they have forgiven him for spending the dirty money of his former law partner, Ponzi schemer Scott Rothstein, on prostitutes and other criminal conduct. They and other supporters crowded into a Miami federal courtroom Thursday to point out Rosenfeldt’s long history of donating free legal work and personal time to charities in South Florida. But their pleas for mercy did not sway U.S. District Judge Marcia Cooke, who sentenced Rosenfeldt to almost three years in prison instead of a lesser term sought by his defense attorney. His sentencing came almost five years after the collapse of a $1.2 billion investment scheme that Rothstein ran out of their Fort Lauderdale law firm."
From New Jersey, via "RHONJ's Teresa Guidice gets 15 months; 41 for Joe," we see: "Two stars of the Real Housewives of New Jersey will be trading the drama of reality TV for prison after being sentenced on conspiracy and bankruptcy fraud charges. After an initial delay, U.S. District Court Esther Salas sentenced Teresa Guidice to 15 months in prison Thursday afternoon. Earlier in the day, her husband Giuseppe "Joe" Giudice was ordered to serve more than three years in prison on conspiracy and bankruptcy fraud charges. He was also ordered to pay $414,000 in restitution."
Tuesday, September 30, 2014
What should be made of the tough prosecution/punishment trend for animal abuse?
The question in the title of this post is prompted by this front-page New York Times article headlined "He Kicked a Stray Cat, and Activists Growled." Here are excerpts:
On one side are the activists. Once dismissed as cat ladies or fringe do-gooders, they have come to wield real power through funding, organization and a focus on legal remedies for animal abuse. They have embraced social-media campaigns; offered rewards to potential witnesses to animal abuse; trained prosecutors; and made inroads in pushing law enforcement across the country to arrest, and seek jail time for, animal abusers.
Yet lawyers defending the accused say that punishment can seem disproportionate to the crime when an animal is the victim. They say that putting people in jail can have serious long-term effects, from starting or strengthening gang affiliations, to taking someone away from school or a job to which they may not return. “The nature of the crime should not automatically mandate a jail sentence if a person is found guilty,” said Tina Luongo, acting attorney in charge of the Legal Aid Society’s criminal practice.
At the moment, the activists seem to be winning the fight. The Federal Bureau of Investigation announced this month that it would track animal abuse as a separate crime, rather than lumping it in the “other” category.
In New York City, the Police Department took over responsibility for animal abuse complaints in January, and created an Animal Cruelty Investigation Squad. Arrests for animal abuse increased about 250 percent through September, compared with the same period last year....
Houston’s district attorney said this month that she would seek jail time in animal cruelty cases, and Massachusetts passed a bill increasing maximum prison time for animal abuse cases to seven years from five. In Virginia, after a push from People for the Ethical Treatment of Animals, a man was sentenced in February to a year in jail for starving a pit bull. And in Texas this year, a man received five years after offering to guide a wayward pet donkey home, then dragging the donkey behind his truck. The donkey, which was found in a ditch, survived....
Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.”
And it is one that animal groups are trying to make even more central.... The groups say they have captured law enforcement’s attention in part by emphasizing that animal cruelty can be a “red flag” for future crimes, particularly domestic violence. Prosecutions nationwide are becoming much more frequent, said Sherry Ramsey, the director of animal cruelty prosecutions for the Humane Society of the United States, “and a lot of it’s based on what we know now about the link between animal cruelty and human violence.”
Yet defense groups say animal abuse cases ... should be handled individually, and are not necessarily predictive of worse behavior. “We don’t punish individuals for alleged future misconduct they might at some point in the future engage, but have not,” Theodore Simon, president of the National Association of Criminal Defense Lawyers, said in an email. “To do so would be to punish a person for a ‘crime’ that has not occurred and was not committed.” Defense advocates also say more needs to be done if society wants to tamp down animal abuse.
Thursday, September 25, 2014
"Does Immigration Enforcement Reduce Crime? Evidence from 'Secure Communities'"
The title of this post is the title of this new empirical paper by Thomas Miles and Adam Cox now available via SSRN. Here is the abstract:
Does immigration enforcement actually reduce crime? Surprisingly, little evidence exists either way — despite the fact that deporting noncitizens who commit crimes has been a central feature of American immigration law since the early twentieth century. We capitalize on a natural policy experiment to address the question and, in the process, provide the first empirical analysis of the most important deportation initiative to be rolled out in decades. The policy initiative we study is “Secure Communities,” a program designed to enable the federal government to check the immigration status of every person arrested for a crime by local police. Before this program, the government checked the immigration status of only a small fraction of arrestees. Since its launch, the program has led to over a quarter of a million detentions.
We exploit the slow rollout of the program across more than 3,000 U.S. counties to obtain differences-in-differences estimates of the impact of Secure Communities on local crime rates. We also use rich data on the number of immigrants detained under the program in each county and month — data obtained from the federal government through extensive FOIA requests — to estimate the elasticity of crime with respect to incapacitated immigrants. Our results show that Secure Communities led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer.
Wednesday, September 24, 2014
Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:
Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding. On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.
The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses.
Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.”
“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”
However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman. Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”
“It will require the release of thousands of dangerous inmates,” she said.
The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery. Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences. According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.
“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.
According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year. The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services. The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.
The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented. “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.
However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities. “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.
The California Police Chiefs Association also has come out hard against the proposition. “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....
Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement." Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement. "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said.
For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided.
Prior related post:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
Absent evidence of threats to humans, is incarceration for five years for animal abuse needed (or helpful)?
Like all good people, I really like puppies and really dislike animal abuse. Still, after being drawn in to this Florida sentencing story by the headline "Man Rapes Pit Bull Puppy, Sentenced To Five Years In Jail For Sexually Abusing Dog," I kept wondering what else the defendant must have done other than abuse his dog in order to be sentence to half a decade behinds bars. But the most complete story I could find about this "puppy rape" case, here from the Daytona Beach News-Journal, heightens my concern that Florida taxpayers are now going to have to spend a lot of money incarcerating a disturbed old man who presents no obvious threat to humans and clearly needs treatment to deal with his affinity for bestiality. Here are the basics:
A man whose sexual battery of a pit bull puppy did not rise to the level of state prison time, nonetheless received five years behind bars Friday afternoon after Circuit Judge Leah Case compared the crime to “systematic” and “chronic” child abuse.
When Case announced her decision to imprison James Bull of Daytona Beach, a crowd of mostly female animal advocates cheered and cried. Many of the advocates wore T-shirts bearing the pit bull puppy’s picture and the words “Justice For Rose.” The dog’s name was Coco, but the New York City rescue organization now fostering the milk-chocolate-colored canine renamed her Rose.
The case is the first time in Volusia or Flagler counties that a person has been convicted on the charge of sexual activity with an animal, a first-degree misdemeanor, State Attorney spokesman Spencer Hathaway said. Bull was also convicted of two counts of felony cruelty to animals and cruelty to animals. According to an article in the Mayport Florida Mirror in January, a St. Augustine man was convicted of bestiality with his dog and was sentenced to eight years in prison under the same state statute that was applied to Bull on Friday, Sept. 19, 2014....
Prosecutor Nathaniel Sebastian told Case that Bull did not score enough points criminally to be sentenced to state prison. He said perhaps the defendant could get additional jail time, probation and psycho-sexual counseling. Bull’s attorney Peter Kenny didn’t present much of an argument in his client’s favor, but did ask Case to spare Bull from prison because of his age and because he has a “bad back.”
While Case acknowledged that indeed Bull didn’t score high enough for prison, she also repeated the jarring testimony given a few minutes earlier by the state’s four witnesses regarding the dog’s daily suffering. “Although he (Bull) doesn’t score, it’s more about the intentional infliction of pain on an animal over and over again,” Case said. “It’s like child abuse. It often happens in secret behind closed doors.”
Prosecutors called three witnesses to the stand — their fourth witness, Halifax Humane Society veterinarian Tom Frieberg, testified via telephone — who provided graphic testimony about the animal’s living conditions and Bull’s abuse. Bull’s neighbor Dean Ray Gill testified that he constantly heard the dog yelping and “screaming.” Gill said that one day in March he was “fed up” and went to the back apartment to see what was happening to the animal. Gill said the door to Bull’s apartment was slightly ajar and he could hear the radio or a stereo blaring inside. Nonetheless, he could still hear the canine yelping above the music. Gill said he saw Bull sexually abusing the animal. Bull threw the dog aside and closed the front door, the neighbor testified.
Daytona Beach animal control officer Eva Burke said that when she arrived at Bull’s residence on March 18, the dog was chained to a porch and could not move because the chain was too short. Burke also said the animal’s rib cage was showing. Both Sebastian and Assistant State Attorney John Reid showed their witnesses photographs of the dog when police arrived on scene. Hathaway, the assistant state attorney who initially had the case, said the pictures were horrifying. Kenney did not call any witnesses on behalf of Bull.
At the risk of being labelled "soft on puppy rapists" or not loving animals, I cannot help but wonder and worry about the quality of representation this defendant received and about the need for such a lengthy term of incarceration if there is was indeed no evidence this defendant ever hurt a human or had plans to abuse humans. This defendant is plainly disturbed and his mistreatment of animals should be punished, but will a five-year jail term help this defendant get needed treatment or help safeguard the community upon his eventual release? Especially because there is considerable evidence suggesting certain types of offenders become MORE likely to recidivate as a result of a term of incarceration, I fear that this kind of "Justice for Rose" will actually entail greater expenses and an eventual greater threat to public safety for the people of Florida.
Tuesday, September 23, 2014
Noting the dynamics and debate over risk-assessments at sentencing
This new Wall Street Journal article, headlined "Judges Turn to Risk-Evaluation Tools in Sentencing Decisions: Many Are Adopting More Systematic Approach to Assessing Likelihood of Reoffense," discusses the always interesting issue of using risk-assessment measures at sentencing. Here are excerpts:
Judges have always considered the risk of reoffending in meting out sentences, and they generally follow guidelines that dictate a range of punishment for a given offense. [More recently], however, [there is] a broad effort to bring a more scientific approach to decisions made by judges, parole officers and corrections officials working in a system that often relies on gut instinct. Risk-evaluation tools have emerged as a centerpiece of efforts to reduce the U.S. inmate population, which jumped from around 200,000 in the early 1970s to over 2 million today.
Many parole boards now weigh risk scores when considering early release, and prison officials use them to determine the level of security offenders need during their stay. But the adoption of such tools has sparked a debate over which factors are acceptable. Attributes such as age or sex, which employers are generally forbidden from including in hiring decisions, are considered by criminal-justice experts to be strong predictors of whether an offender is likely to commit a crime in the future.
The measures vary widely but generally are based on an offender's criminal history and, in addition to age and sex, may include marital status, employment and education, according to Sonja Starr, a law professor at the University of Michigan.
Pennsylvania, one of the latest states to turn to actuarial tools in sentencing, is building a test that weighs the nature of offense, criminal history, age, sex and county of residence. The last factor is the most controversial as it could be considered a proxy for socioeconomic status. Missouri takes into account current offense and criminal history, age, whether the offender has a history of substance abuse, education level and employment.
Judges aren't bound by the evaluations, but there is evidence they are taking them into account. Virginia officials attribute a more than 25% drop in the number of nonviolent offenders sent to prison annually to the assessments, used to score felons convicted of fraud, larceny and drug crimes since 2003. In the past decade, the percentage of offenders serving prison terms for violent crime has risen to 74% from 61%, said Chief Judge Bradley B. Cavedo of Richmond Circuit Court. "It doesn't really control the outcome, but it is useful information," he said of the measures.
The efforts have drawn skepticism from Attorney General Eric Holder, who told a group of defense lawyers in Philadelphia last month that basing sentencing on factors such as a defendant's education level "may exacerbate unwarranted and unjust disparities."
There is no research yet on whether the use of risk evaluations in sentencing has aggravated, for example, the gap between sentences for black and white men for similar crimes. Ms. Starr said the disparities created by risk measures are evident. "When it comes down to it, these assessments stand for the proposition that judges should sentence people longer because they were in foster care as children or had too many bouts of unemployment," she said.
Christopher Slobogin, a Vanderbilt University law professor, said the alternative was potentially worse. "At least these risk-assessment instruments don't explicitly focus on race or poverty, unlike what might occur in a sentencing regime where judges are making risk assessments based on seat-of-the-pants evaluations," he said.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing":
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
- Senator Whitehouse defends risk-assessment tools for some sentencing determinations
September 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack
High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws
As reported in this New York Times piece, headlined "D’Souza Is Spared Prison Time for Campaign Finance Violations," another notable white-collar defendant got a below-guideline federal sentence today thanks to judges now having broader post-Booker sentencing discretion. Here are the details:
The conservative author and documentary filmmaker Dinesh D’Souza was spared prison time on Tuesday after pleading guilty earlier this year to violating federal campaign finance laws.
Judge Richard M. Berman of Federal District Court in Manhattan handed down a probationary sentence — including eight months in a so-called community confinement center — and a $30,000 fine, bringing to a close a high-profile legal battle that started with Mr. D’Souza’s indictment in January for illegally using straw donors to contribute to a Republican Senate candidate in New York in 2012.
Mr. D’Souza, who has accused President Obama of carrying out the “anticolonial” agenda of his father, initially argued that he had been singled out for prosecution because of his politics. In April, his lawyer, Benjamin Brafman, filed court papers contending that Mr. D’Souza’s “consistently caustic and highly publicized criticism” of Mr. Obama had made him a government target.
A month later, however, on the morning he was scheduled to go on trial, Mr. D’Souza pleaded guilty. “I deeply regret my conduct,” he told the court. Even with his fate hanging in the balance, Mr. D’Souza plowed ahead with his thriving career as a right-wing provocateur. Over the summer, while awaiting his sentencing, he published the book “America: Imagine a World Without Her,” which reached No. 1 on The New York Times’s nonfiction hardcover best-seller list, and a companion documentary film that has made $14.4 million at the box office.
The government charged Mr. D’Souza, 53, with illegally arranging to have two people — an employee and a woman with whom he was romantically involved — donate $10,000 each to the campaign of an old friend from Dartmouth College, Wendy E. Long, with the understanding that he would reimburse them in cash for their contributions. Ms. Long was challenging Senator Kirsten E. Gillibrand, a Democrat.
According to prosecutors, Mr. D’Souza lied to Ms. Long about the donations, reassuring her that “they both had sufficient funds to make the contributions.” Ms. Long pressed Mr. D’Souza on the issue after the election, and he acknowledged that he had reimbursed the two people, the government said, but told Ms. Long not to worry because she had not known about it.
When Mr. D’Souza entered his guilty plea, Judge Berman said he could face up to two years in prison. The federal sentencing guidelines call for 10 to 16 months, but the final decision is up to the judge’s discretion. “Judges are all over the map on these reimbursement cases,” said Robert Kelner, a campaign-finance lawyer at Covington & Burling.
Mr. D’Souza’s lawyers asked for leniency, arguing in a court filing that their client had “unequivocally accepted responsibility” for his crime. “We are seeking a sentence that balances the crime he has regrettably committed with the extraordinary good Mr. D’Souza has accomplished as a scholar, as a community member and as a family member,” they wrote, requesting that he be sentenced to probation and community service at the Boys and Girls Clubs of Greater San Diego.
The government rebutted Mr. D’Souza’s claims, highlighting both the seriousness of his offense and what it called “the defendant’s post-plea failure to accept responsibility for his criminal conduct.” According to the government, Mr. D’Souza assumed a different posture with respect to his case when he was not before the court. It cited a television interview he gave two days after his plea in which he “repeatedly asserted that this case was about whether he was selectively prosecuted.”
This story reminds me why I am so sad Bill Otis no longer comments on this blog; I am so eager to hear from him directly whether he thinks this case is yet another example of, in his words, allowing "naïve and ideologically driven judges" to make sentencing determinations and therefore further justifies embracing mandatory sentencing schemes that would always require judges to impose prison terms on these sorts of non-violent offenders because these sorts of offenses do great harm even if they do not involve violence.
Based on my limited understanding of the crime and criminal here, I feel fairly confident asserting that a prison term for Mr. D’Souza would have achieved little more than spending extra federal taxpayer dollars without any real public safety return on that investment. But Bill and I rarely see eye-to-eye on these matters, and thus I am eager for a distinct perspective in this notable white-collar case.
September 23, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack
Monday, September 22, 2014
One of the most intriguing criminal justice initiatives not dealing with marijuana in the 2014 election season is Proposition 47 in California. This nonpartisan analysis from the Legislative Analyst's Office provides this simplified summary of the initiative (as well as a more detailed explanation of Prop 47's particulars):
This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences. In addition, the measure requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services.
This local recent article, headlined "Arguments Heating Up in Penalty-Reducing Prop 47," provides the essence of the current state of debate over this notable initiative:
Some say under Proposition 47 criminals will get a slap on the wrist, but others argue it's a second chance. The crime-fighting arguments for and against Prop 47 are heating up as we inch closer to the November election.
Prop 47 looks to drop non-violent, non-sexual and non-serious felony crimes into misdemeanors. Supporters say it will ease jail and prison overcrowding by giving some a second chance. But opponents say it's a dangerous way to increase the speed of the revolving jail door.
About two dozen religious activists began a huge push Thursday at St. Rest Baptist Church is Southwest Fresno to support Prop 47, calling it the Safe Neighborhoods and Schools Act. Catholic Bishop Armando Ochoa was among the speakers who believe Prop 47 would benefit the public. "Incarceration does a miserable job of educating people and treating mental illness, but that has become the norm for California," he said.
Under Prop 47 there is a promise of savings to the state by reducing prison and jail population. The promise includes transferring that savings, around a billion dollars over several years, to K-12 education, mental health and rehab programs.
"It promises to lower crime by making it legal," said Mike Reynolds, author of California's three-strikes law. "That's basically what it's saying." Reynolds penned three strikes after his daughter, Kimber Reynolds, was killed in the Tower District in 1992. "This is going to encourage more young people to come into a life of crime," Reynolds said. "It's going to release dangerous criminals back out on the streets, including three strikers."...
So far several law enforcement groups, like the California Police Chiefs Association, are highly opposed to Prop 47's reduced penalties....
The crimes that would be reduced to misdemeanors include drug possession, forgery and shoplifting, among a host of other crimes.
Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out
This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer. Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:
Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement. In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million. Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme’s investors in the course of the fraud.
For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....
Admittedly, there is intuitive appeal to the government’s argument that Snelling should not be allowed to benefit from the payments he made “not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money.” We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is. The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.
An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review. See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (“[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.”) (internal alterations and quotation marks omitted). As appealing as the government’s argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.
Sunday, September 21, 2014
Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:
Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?
Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.
Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.
Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.
It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.
Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.
Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.
California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.
Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.
Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.
The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....
If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.
September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, September 19, 2014
"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"
The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:
This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis. Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis. One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.” The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.
It is difficult, however, to evaluate these competing claims without proper context. This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context. Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis. This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions. And it ultimately highlights the merits, and shortfalls, of each camp’s arguments. The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.
Thursday, September 18, 2014
"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing. The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.
That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways. Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling. Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.
Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations. So I conclude by considering some of the options available to states. I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums. I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison. I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.
Wednesday, September 17, 2014
Seventh Circuit panel seemingly unmoved by feds appeal of probation sentence given to Beanie Babies billionaire
As detailed in this new Chicago Tribune article, "Prosecutors in Warner tax evasion case grilled by appeals court judges," federal prosecutors apparently did not get a warm reception at oral argument in the Seventh Circuit as they pressed their claims that a probation sentence given to a high-profile tax cheat was unreasonable. Here are the basics:
Federal prosecutors appealing the probation sentence of Beanie Babies founder Ty Warner faced a three-judge panel Wednesday to make the case for why the Westmont billionaire should get prison time for evading taxes.
Warner pleaded guilty last year to one count of tax evasion for failing to report more than $24 million in income and skirting $5.5 million in federal taxes on millions of dollars he hid for more than a decade at two Swiss banks. Prosecutors had been pushing for a sentence of at least one year in prison, partly to deter others from committing the same crime. Sentencing guidelines had called for a prison sentence of up to 57 months. His defense lawyers had argued that many tax evaders were allowed to join an amnesty program and that, even among those criminally charged and convicted, more than half who had been sentenced received probation.
Ilana Rovner, a U.S. appeals court judge for the seventh circuit, said Wednesday that she had a problem reconciling why the government was seeking to throw out Warner’s sentence when many tax evaders get probation or might not be prosecuted at all. Also, the amount of tax he evaded was a fraction of what he has paid in taxes, she noted. Warner has already paid a civil penalty for not reporting the offshore accounts and restitution for what he owed in back taxes and interest....
Rovner also noted that prosecutors seem to be ignoring the “considerable discretion” of the district judge, Charles Kocoras, has in imposing a sentence. He is a “veteran” judge who “obviously agonized” over the decision, she said.
Judge Michael Kanne noted that Warner’s guilty plea “saved the government some money” and that the appeals court “shouldn’t be the sentencing court.”
Judge Joel Flaum wondered why, if Warner’s conduct was so egregious, he was charged with only one count of tax evasion and why the government was seeking at minimum at least a year in prison. Rovner chimed in, addressing Petersen: “You agreed to this.”
Judge Kanne noted that one count of tax evasion and a minimum prison sentence of a year “doesn’t sound like deterrence to me.” Petersen responded that probation is a far more lenient sentence than the minimum of one year the government was seeking.
Anyone eager to hear the oral argument in full can access it via this mp3 link from the Seventh Circuit's website. Notably, former US Solicitor General Paul Clement argued on behalf of the defendant (and I cannot help but wonder if he got some special Beanie Babies from the defendant in addition to the usual fees for his efforts).
Prior related posts:
- You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
- Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
- Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable
September 17, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence
As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:
The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.
On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.
"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....
Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.
Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."
Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."
Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.
Related prior posts:
- Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide
- Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
Monday, September 15, 2014
Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells
I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.
Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Prior related posts on Young case:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, September 09, 2014
Will and should federal judge Mark Fuller get the same professional treatment as Ray Rice?
The provocative question in the title of this post is a slightly different phrasing of the question in the headline of this provocative AL.com commentary by John Archibald. That headline is "Superstar Ray Rice cut from team; will 'superstar' judge Mark Fuller get to play on?", and the commentary concludes this way:
Before seeing the actual video evidence, the Baltimore Ravens had apologized for Rice. Then team officials saw the replay. They saw the lightning left. They saw Janay Rice quivering on the floor. They saw, and finally reacted as they had to react, with speed and with revulsion.
With that devastating left hand there was nothing left to the imagination. It didn't matter that Rice had racked up 3½ miles of yardage during his career, that he scored 222 points. It did not matter who he was before he threw that punch. He was somebody else — wearing the Ravens' colors — after it. They cut him from the team today.
It is no different with any abuser. It is sure no different with "superstar" federal judge Mark Fuller, who was arrested in Atlanta in August for beating up his wife. We don't have video of that hotel room, but the police account was vivid enough.
The place reeked of booze and was littered with broken glass —and hair. Kelli Fuller told the cops she accused her husband of having an affair, and he responded by throwing her to the ground, kicking her and beating her in the face.
Fuller copped a plea in Atlanta, agreeing to terms that will send him to counseling and expunge his record. Like the whole wife-beating thing never happened at all.
Which is as bad as the NFL handing Rice a two-game suspension in the first place. Which is worse than the NFL handing Rice a two-game suspension in the first place.
He'll return to the bench a judge for life, deciding the fate of his fellow man as if the law did not apply to him, as if he were above it, as if he were ... a superstar.
But he's still just a 56-year-old punk kid. He ought to quit, but punk kids and abusers don't often quit. That shouldn't be the end of it.
Because if the NFL and the Baltimore Ravens can make a statement about domestic violence, so can the courts and the United States Government. Fuller shouldn't get the opportunity to quit. He needs to be impeached. We should demand it. He is, after all, wearing our colors.
Monday, September 08, 2014
Former SAC trader Mathew Martoma gets lengthy (but way-below guideline) federal prison term of nine years for insider trading
As reported in this new USA Today piece, headlined "Ex-SAC Capital trader gets 9-year sentence," a high-profile white-collar sentencing has resulted in a below-guideline (but still lengthy) prison term for an insider trader. Here are some of the interesting details from today's interesting sentencing in New York federal court:
Former SAC Capital portfolio manager Mathew Martoma was sentenced to a nine-year prison term Monday for his central role in what federal prosecutors called the most profitable insider-trading scheme in U.S. history. Martoma, a former financial lieutenant to billionaire hedge fund founder Steven Cohen, sat silently, declining to speak before U.S. District Judge Paul Gardephe imposed the sentence during a Manhattan federal court hearing.
The judge also ordered the 40-year-old father of three to forfeit nearly $9.4 million — more than his current net worth — and surrender for imprisonment on Nov. 10. His attorneys are expected to file an appeal of his Feb. 6 conviction.
Federal jurors found Martoma guilty of conspiracy and two counts of securities fraud after a month-long trial during which the defendant declined to testify. The case centered on charges that Martoma illegally obtained disappointing results of clinical tests on an experimental Alzheimer's disease drug in 2008 by cultivating relationships with two doctors who were privy to details of the testing outcome. Martoma then set in motion a $700 million sell-off of SAC Capital stock holdings in shares of Elan and Wyeth, the pharmaceutical firms that developed the drug. The transactions generated approximately $276 million in profits and avoided losses, along with a nearly $9.4 million 2008 bonus for Martoma.
The sentence imposed by Gardephe was lower than the 188-months-to-235-months range specified in federal sentencing guidelines. It exceeded the eight-year prison term recommended by probation officials and met prosecutors' request for a sentence higher than that recommendation.
The sentence came after defense attorney Richard Strassberg argued for leniency.... He urged Gardephe to weigh Martoma's devotion to his family and history of helping others. The defense lawyer also filed more than 100 support letters from Martoma's relatives and friends — some of whom were in the courtroom for Monday's sentencing.
The defense team also argued that Martoma was the sole source of financial support for his wife, Rosemary, and the couple's three young children. "Mathew, as a person, is much more than the charge of insider-trading that has brought us all to this courtroom today," said Strassberg. He argued that a "just" sentence would consider Martoma's history of charitable acts and helping others.
But federal prosecutor Arlo Devlin-Brown said "It is hard to think of a more significant and brazen instance of insider trading than the case before this court. The sentence in this case, we submit, must reflect the seriousness of this significant breach."
Gardephe, however, said he had weighed all of the submissions from both sides and studied sentences in other insider trading convictions in New York's Southern federal district. The judge credited Martoma's charity and other acts of generosity but he said the evidence showed that Martoma went for "one big score" that would provide lifetime security. "His plan worked, but now he has to deal with the fallout."
Gardephe also referred to Martoma's expulsion from Harvard Law School for falsifying a grades transcript, as well as his subsequent admission to Stanford University's business school without disclosing the expulsion. Saying "there is a darker side" to Martoma's character, Gardephe added, "I do believe there is a connection" to the insider trading episode. "The common thread is an unwillingness to accept anything but the top grade ... and the highest bonus."
September 8, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack
Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt
Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader. Here is the text of Judge Noonan's Hardrick concurring addition:
I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.” See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense. It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty? Better to stop a crime’s commission than mop the consequences.
Judge Reinhardt's comment are a bit more extended, and here are excerpts:
Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals. I do not agree, however, that advertising the legal consequences is a solution to the problem. Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct. Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now. Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution. See 18 U.S.C. § 2252(b)(1). Nor are mandatory sentences of fifteen to forty years for a second. See id.....
I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.
There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far. Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children. All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.
September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
Pregame preview of another high-profile insider-trading sentencing in NYC
This new BloombergBusinessweek article, headlined "Mathew Martoma, Convicted SAC Trader, Gets Sentenced Today," provides these basics about a not-so-basic, white-collar sentencing scheduled in federal court today:
Around 9 pm on November 8, 2011, a pair of FBI agents pulled up outside of Mathew Martoma’s home in Boca Raton, a 6,200 square-foot mansion tucked behind a circular driveway and lavish palm trees. They were there to talk to Martoma about insider trading at SAC Capital, his former employer and one of the world’s largest hedge funds.
The SEC, the FBI and the U.S. Attorney’s Office in Manhattan were five years into a far-reaching investigation of illegal trading among hedge funds across the country, and just three weeks before, Raj Rajaratnam, the co-founder of the $7 billion fund the Galleon Group, had been sentenced to a record 11-year prison term for insider trading.
The government was fairly confident that Martoma would lead them to an even bigger prize: one of the richest men in the world and the founder of SAC, Steven A. Cohen. From that point on, nothing proceeded quite as the government expected. Instead, Martoma is scheduled to be sentenced today in what prosecutors describe as “the most lucrative insider trading scheme ever charged.”
After an investigation, an arrest and a high-profile five-week trial in January, Martoma was convicted of insider trading in two drug stocks, Elan and Wyeth, and earning profits and avoiding losses of $275 million while working as a portfolio manager at SAC. The government alleged that he spoke with Cohen right after learning about important drug trial results, and that Cohen traded the two stocks as well. Martoma’s was the eighth conviction of a former or current SAC employee of insider trading....
From the FBI’s perspective, Martoma was an ideal candidate for cooperation. He has three young children and a beautiful, devoted wife, all of whom he would be separated from during a long prison term. He was also fired from SAC after failing to replicate his success in Elan and Wyeth and, the government believed, there was powerful evidence against him. He had no reason to be loyal to his former boss and he had a lot to lose. Still, Martoma baffled everyone by refusing to flip, insisting he was innocent and bringing the government’s determined march toward Cohen to an abrupt stop. Without a witness, any developing case against the hedge fund founder fell apart. Now it is Martoma who faces a sentence of up to 20 years, although it’s likely to be closer to 8.
Cohen was never charged with insider trading, and his life goes on relatively unchanged. Prosecutors indicted SAC in January, 2013, calling the company a “magnet for market cheaters.” The firm agreed to plead guilty and pay a $1.2 billion fine (not including $600 million already pledged to the SEC over Martoma’s trades). A civil case brought by the SEC charging Cohen with failing to supervise his employees has not been resolved. Cohen shut down his hedge fund and transformed his firm into a family office, Point72 Asset Management, which invests his personal fortune.
Thursday, September 04, 2014
Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:
Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.
A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.
Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption." Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."
The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012. The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans. They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.
The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify. His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....
Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses. Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.
My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.
Wednesday, September 03, 2014
Third Circuit panel splits over whether placing child porn in shared folder constitutes distribution
A Third Circuit panel today split on an interesting question of computer crime law involving child pornography. Here is how the majority opinion in US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) gets started:
David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography. At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available. The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography. We conclude it does not. A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder. Accordingly, we vacate Husmann’s conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.
And here is how the dissenting opinion, per Judge Van Antwerpen, gets going:
I cannot join my colleagues in the narrow definition of “distribution” they would apply to child pornography cases. George Husmann was convicted by a jury of three counts of distributing child pornography pursuant to 18 U.S.C. § 2252(a)(2). Husmann placed images of child pornography into a shared folder accessible to all global users of the peer-to-peer (“P2P”) file sharing program 360 Share Pro. Once in the shared folder, a search term and a click of a mouse allowed access to these images by any user on the system. My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.” This is certainly not what Congress had in mind and following the majority’s approach, the crime of distribution would not be complete until a police officer downloaded the image. This is a distinction without merit. Given the plain meaning of the term, the intent of Congress, the advancement of technology, as well as a series of recent sentencing cases, the placing of child pornography into a shared file accessible over a peer-to-peer file sharing network, alone should constitute “distribution.” Husmann took all the necessary steps to make a product available to the public in a publically accessible location, and whether or not a party took that product is irrelevant to both the purpose of § 2252 and to his role as distributor. For that reason, the conviction of Appellant George Husmann for “distribution” under 18 U.S.C. § 2252 should be upheld.
"Life sentence for buying marijuana?"
The question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU. An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront." And this companion piece, headlined "The price of pot," provides this additional preview:
Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.
This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime? Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.
And now here are now excerpts from the commentary by Vanita Gupta:
Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.
The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....
While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.
We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.
Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.
The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.
But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.
According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.
The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.
As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.
September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
You be the sentencing judge: decades or just years for mistaken home shooting in Detroit? UPDATE: Judge decides decades
This new Detroit Free Press article, headlined "Attorney: Wafer wants to apologize at sentencing today for porch shooting," sets out the basic sentencing arguments being presented to a Michigan judge in a high-profile homicide case. Here are the details:
Theodore Wafer wants to apologize to the parents of the 19-year-old woman he fatally shot 10 months ago and plans to make a statement during his sentencing this morning. That is what Wafer’s attorney said in a court document asking Wayne County Circuit Judge Dana Hathaway to depart downward from the sentencing guidelines of second-degree murder when she sentences the Dearborn Heights man for killing Renisha McBride.
“He wants to tell the McBride family that he is so sorry for taking their loved one’s life,” defense attorney Cheryl Carpenter said in the document. “He wishes he could have taken it all back and not opened that door. He beats himself up for opening the door.”
Wafer, 55, fatally shot McBride on the porch of his home about 4:30 a.m. Nov. 2. A jury convicted him last month of second-degree murder, manslaughter and using a firearm in a felony.
Prosecutors said they believe Wafer should receive a sentence of 15-25 years in addition to two years for the firearm count and will make their argument in court, said Maria Miller, a spokeswoman for the office. “There are no compelling, objective and verifiable reasons not accounted for in the sentencing guidelines that would justify a downward departure from the guideline range,” prosecutors said in a court document filed last week.
The defense disagrees. Carpenter said in the court document that she anticipates asking for a minimum sentence of four to seven years plus two years for the weapons conviction. Carpenter called the facts and circumstances of the case “more akin to manslaughter than murder.” Carpenter cited several reasons for the departure, including Wafer’s age, his cooperation with police after the shooting and remorse for McBride’s death....
Gerald Thurswell, the attorney for McBride’s family in a wrongful-death lawsuit against Wafer, said one of McBride’s sisters will give a victim-impact statement during sentencing, and McBride’s father, Walter Simmons, will read a statement from another sister. McBride’s family feels Wafer should spend the rest of his life behind bars, Thurswell said....
The court document filed by the defense said Wafer is “riddled with guilt for his actions” and has been diagnosed with post-traumatic stress disorder. During the trial, prosecutors argued that Wafer was angry, wanted a confrontation, went to the door to scare away neighborhood kids with his gun, shot through a locked screen door and killed McBride, whom they described as an “unarmed, injured, disoriented 19-year-old.”
Wafer, who said he couldn’t find his cell phone and had no land line, testified that he heard banging on his doors, grabbed a baseball bat then his shotgun, opened the front door because he thought someone was going to come inside and fired in self-defense.
The jury didn’t believe self-defense, a juror told the Free Press. Carpenter said she plans to appeal the conviction.
UPDATE: This CNN report, headlined "Man gets 15-30 years for shooting Michigan teen on his porch," provides the details of the sentencing decision made by the real sentencing judge here. Here is how the report starts:
Theodore Wafer said he was sorry from the bottom of his heart Wednesday for gunning down an unarmed young woman on the front porch of his Michigan home, but a judge said "mistake" was the wrong word to describe a murder and sentenced him to 15 to 30 years in prison.
Wafer, 55, looked down, his lawyer patting him on the back, as Wayne County Circuit Judge Dana Hathaway sentenced him for second-degree murder in the November shooting death of Renisha McBride, 19 -- a racially charged case because the victim was black and Wafer is white.
Wafer had testified that he feared for his life when loud banging startled him awake in the early morning hours of November 2, 2013. He opened his front door and fired a fatal shotgun blast into the face of McBride, who prosecutors say was seeking help after a car accident.
"To the parents family and friends of Renisha McBride, I apologize from the bottom of my heart and I am truly sorry for your loss," Wafer said. "I can only hope and pray that some how you can forgive me. ... From my fear, I caused the lost of a life that was too young to leave this world and for that I carry that guilt and sorrow forever."
Hathaway said it was one of the "saddest cases" she had ever presided over. "I do not believe that you are a cold-blood murderer or that this case had anything to do with race or that you are some sort of monster," the judge said. "I do believe you acted out of some fear but mainly anger and panic and unjustified fear is never an excuse to take someone's life."
Hathaway said she was confident Wafer was remorseful and would likely never commit another crime in his life, but that McBride came to his doorstep seeking help and lost her life. "You made the choices that brought us here," the judge said. "I don't know that you could ever use the word 'mistake' to describe a murder, and a person was murdered."
The defense had argued for a sentence of four to seven years, saying a longer sentence guaranteed that he would never get out of prison alive. But Hathaway said the sentencing guidelines were reasonable for the crime, giving him 15 to 30 years for second-degree murder and two additional years for possessing a firearm while committing the felony.
Monday, September 01, 2014
Gendered perspective on Ohio's challenges with opioids and prison growth
As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population. And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:
A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.
Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.
Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.
At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....
Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.
Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”
Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.
September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Sunday, August 31, 2014
"Rational Criminal Addictions"
The title of this post is the title of this intriguing paper now available on SSRN and authored by Manuel Utset. Here is the abstract:
This article argues that repeated criminal misconduct, at least in some areas, has the characteristics of a habit or addiction. Curiosity or a transient attraction can lead an offender to commit her first crime. This first infraction will give her a sense of how much she enjoyed it, and whether she has the talent, and stomach, to continue down a path of repeated misconduct. If the feedback is sufficiently positive, the offender may commit a second crime, and possibly a third.
At some point, the offender will find herself with the opportunity to commit yet another crime, and realize that the immediate disutility of stopping, of going back into a life as a law-abiding citizen, is too great: she may find that the immediate disutility of foregoing a criminal opportunity is too high. Once the habit takes hold, the offender may continue to commit crimes, even if doing so leads her to suffer large aggregate negative internalities. An offender is thus “addicted to criminal misconduct” if her previous history of misconduct increases the marginal utility of committing a crime in the current period by a sufficient amount; that is, if the immediate disutility from stopping has reached a cut-off point, such that she violates the law notwithstanding the fact that but-for the addiction she would have obeyed the law.
The addicted criminal trades off the heightened immediate disutility from obeying the law against the reduction in total utility due to the negative internalities — including expected sanctions. After setting forth the rational criminal addiction theory, the article develops a number of legal implications that follow from the theory.
Saturday, August 30, 2014
"The criminalisation of American business"
The title of this post is the headline of this notable new Economist cover story, which carries the subheadline "Companies must be punished when they do wrong, but the legal system has become an extortion racket." Here are excerpts:
Who runs the world’s most lucrative shakedown operation? The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.
The amounts are mind-boggling. So far this year, Bank of America, JPMorgan Chase, Citigroup, Goldman Sachs and other banks have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds. BNP Paribas is paying $9 billion over breaches of American sanctions against Sudan and Iran. Credit Suisse, UBS, Barclays and others have settled for billions more, over various accusations. And that is just the financial institutions. Add BP’s $13 billion in settlements since the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in some cars, and many more.
In many cases, the companies deserved some form of punishment: BNP Paribas disgustingly abetted genocide, American banks fleeced customers with toxic investments and BP despoiled the Gulf of Mexico. But justice should not be based on extortion behind closed doors. The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism (see [companion] article)....
The drawbacks of America’s civil tort system are well known. What is new is the way that regulators and prosecutors are in effect conducting closed-door trials. For all the talk of public-spiritedness, the agencies that pocket the fines have become profit centres: Rhode Island’s bureaucrats have been on a spending spree courtesy of a $500m payout by Google, while New York’s governor and attorney-general have squabbled over a $613m settlement from JPMorgan. And their power far exceeds that of trial lawyers. Not only are regulators in effect judge and jury as well as plaintiff in the cases they bring; they can also use the threat of the criminal law.
Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.
Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs. Nor is it clear how the regulatory booty is being carved up. Andrew Cuomo, the governor of New York, who is up for re-election, reportedly intervened to increase the state coffers’ share of BNP’s settlement by $1 billion, threatening to wield his powers to withdraw the French bank’s licence to operate on Wall Street. Why a state government should get any share at all of a French firm’s fine for defying the federal government’s foreign policy is not clear....
In the longer term, two changes are needed to the legal system. The first is a much clearer division between the civil and criminal law when it comes to companies. Most cases of corporate malfeasance are to do with money and belong in civil courts. If in the course of those cases it emerges that individual managers have broken the criminal law, they can be charged.
The second is a severe pruning of the legal system. When America was founded, there were only three specified federal crimes — treason, counterfeiting and piracy. Now there are too many to count. In the most recent estimate, in the early 1990s, a law professor reckoned there were perhaps 300,000 regulatory statutes carrying criminal penalties—a number that can only have grown since then. For financial firms especially, there are now so many laws, and they are so complex (witness the thousands of pages of new rules resulting from the Dodd-Frank reforms), that enforcing them is becoming discretionary.
This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective — and potentially corrupt — system of justice in which everybody is guilty of something and punishment is determined by political deals. America can hardly tut-tut at the way China’s justice system applies the law to companies in such an arbitrary manner when at times it seems almost as bad itself.
Friday, August 29, 2014
Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud
Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient. But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.
The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners. Here are snippets that help highlight why:
A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud. The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment. The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions. We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance. We remanded the case to afford the district court a chance to supply an adequate explanation....
In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.
On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.” In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1). The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud. See 18 U.S.C. § 3553(a)(7).
The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income. However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied. We find no error in the district court’s reference to these events....
While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.” Feemster, 572 F.3d at 464 (quotation omitted). For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes. We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.
This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation. This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."
Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court.
August 29, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Wednesday, August 27, 2014
Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute. The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case. Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:
A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith). A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.
At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.
Here is how the dissent, per Judge Sargus sitting by designation, gets started:
This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent. In my view, the majority has adopted an unduly restrictive interpretation of the statute.
Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014). The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other. I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless. This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.
Related prior posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
Tuesday, August 26, 2014
Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details:
Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.
Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.
The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed. The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes. A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.
To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...
Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.
In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.
The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters. "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.
In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual. She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.
Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."
"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.
Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.
The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.
August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack