Monday, April 13, 2015

Tennessee Supreme Court postpones all scheduled executions while considering execution protocol

As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:

Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.

Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....

Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.

Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.

April 13, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack (0)

Nearly 7 years after her crime, Jodi Arias finally officially gets LWOP sentence in Arizona

As reported in this Reuters article, an "Arizona judge sentenced former waitress Jodi Arias to life in prison with no possibility of parole on Monday for shooting and stabbing her ex-boyfriend to death in 2008." Here is more:

Maricopa County Superior Court Judge Sherry Stephens said Arias' crime, which attracted national attention, was "especially cruel ... (and) involved substantial planning and preparation."

Arias, 34, had escaped a possible death sentence last month after a lone juror at her sentencing retrial refused to back the death penalty throughout five days of deliberations.

She was found guilty of murder in 2013 after a trial packed with lurid details and graphic testimony. Prosecutors said she killed her former partner in a jealous rage, while Arias argued she acted in self-defense.

Shackled and clad in jail stripes, Arias told the court she had long wanted to be put to death for the crime. "But I had to fight for my life just like I did on June 4, 2008, because I realized how selfish it would be for me to escape accountability for this mess I created," Arias said.

She said she remembered the moment she plunged the knife into Travis Alexander's throat. "He was conscious. He was still trying to attack me. It was I who was trying to get away, not Travis, and I finally did," she said. "I never wanted it to be that way."

The 30-year-old victim was found in a shower at his Phoenix-area home. He had been shot in the face and stabbed more than 20 times, and his throat was slashed almost from ear to ear.

Eleven of the jurors from Arias' retrial were in court for the sentencing, wearing blue clothing and ribbons in memory of the victim. The holdout juror did not attend. After they failed last month to reach a unanimous verdict on whether she should be executed, Stephens had to choose between sentencing Arias to life in prison or to life with the possibility of parole after 25 years.

"The defendant did not render aid to the victim ... (and) destroyed evidence at the crime scene. The defendant went to great lengths to conceal her involvement," Stephens said. "The court finds the mitigation presented is not sufficiently substantial to call for leniency and that a natural life sentence is appropriate."

Samantha Alexander, a younger sister of the victim, told the court Arias had sought to smear Travis throughout and that she deserved to be put to death. "She continuously makes atrocious lies about my brother, dragging his name through the mud like she dragged his body through his own blood," she said.

Some prior posts on the Arias case:

April 13, 2015 in Celebrity sentencings, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Lengthy list of hard criminal justice questions for the 2016 Prez field

With Hillary Clinton and soon Marco Rubio throwing their hats into the proverbial ring, it is now no longer too early to start assembling some hard criminal justice reform question for persons pursuing the top position in the Executive Branch of the US Government.  Helpfully, Radley Balko go this task off to a running start last week via this extended Washington Post piece headlined "Are you running for president? Please answer these questions about the criminal justice system." A few too many of Radley's questions are focused on policing issues for my taste, but here are a few sentencing fans may like:

— Several media reports, advocacy groups and judicial opinions (including a recent opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit) have described an epidemic of prosecutor misconduct across the country.  Do you believe there is a widespread problem of prosecutor misconduct in America? Do you believe the federal government has a responsibility to address it?

— What do you believe is the primary function of prisons — to punish people for doing bad things, to isolate dangerous people from society, or to rehabilitate criminals so they can reenter society as productive citizens? What do you believe our prisons primarily do today?

— Should people convicted of nonviolent felonies be permitted to vote once they’ve served out their sentences?

— One sign of moral leadership is a willingness to do the right thing even if it is politically unpopular.  According to U.S. Sentencing Surveys of federal judges, federal judges by a wide margin believes the federal sentencing guidelines for one crime is more disproportionate and unfair than any other.  That crime is possession of child pornography. Would you support an effort to pass more reasonable sentences for this crime?....

— Do you believe that Colorado and Washington state are in violation of federal law by legalizing recreational marijuana?  Would you attempt to enforce the federal marijuana laws in those states?  What if other states follow suit?  What if other states begin to legalize other illicit drugs?...

— The last three presidents have been historically stingy with the pardon and clemency power. The power today is mostly used to confer mercy and redemption on people who have already served their time.  But it was originally intended as a last check to prevent any injustices that may have slipped through the system.  What approach would you take to granting pardons and commutations? Do you think the last two administrations were too generous, too frugal, or just about right?...

— We haven’t had a justice on the Supreme Court with any real criminal defense experience for nearly a quarter century. We currently only have one with any day-to-day criminal law experience at all.  Given that the Supreme Court routinely issues rulings with profound implications on the powers of police and prosecutors and the civil rights of suspects, some commentators are troubled by the lack of criminal law experience on the court, and in particular the lack of any experience from the perspective of criminal suspects. Do you agree? Could you see yourself nominating a justice with significant criminal defense experience?

— Do you believe an innocent person has been executed since the United State reinstated the death penalty in 1976?  If so, do you believe this is an indictment of the death penalty, or that the benefits of capital punishment outweigh this risk?

I would be very excited (and somewhat surprised) if even a few of these questions were to receive serious attention by folks seeking the presidency in the months ahead. And if I were to pick a single (simple?) question to push for an answer on, it might be just "What do you believe is the primary function of prisons?".

I would be eager to hear from readers which of these question they would most like to see answers by the likes of Senators Clinton, Cruz, Paul and Rubio (and others). I also would be eager to see other like questions suggested in the comments. (If I were adding one, I might add something about the application of the Eighth Amendment to adult prison sentences or significantly increasing federal sentences based of acquitted conduct.)

April 13, 2015 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Sunday, April 12, 2015

"Defending the Jury: Crime, Community, and the Constitution"

9781107650930The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:

This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive.  Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system.  It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:

One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.

Why are plea deals so common?  Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement.  For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence.  In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.

There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise.  But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done.  One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”

April 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Interesting update on continued GOP blockade of AG-nominee Lynch

Given how much many members of GOP claim to oppose what Eric Holder has done as Attorney General, it remains notable and somewhat comical that the GOP-controlled Senate continues to be in no rush to get him out of the job.  This lengthy article, headlined "Loretta Lynch AG nomination drags on, leaving her supporters to question why," tells the latest chapter of this story. It starts this way:

President Obama’s nomination of Loretta Lynch to become the country’s first African-American woman attorney general is a historic pick. Her confirmation, however, is now taking on new historical relevance as her wait for a confirmation vote by the full Senate drags into its sixth month.

The period between the Senate Judiciary Committee’s vote to confirm and the full Senate vote — which in Lynch’s case has not been scheduled — has lasted longer for her than for any attorney general nominee in recent history. By the time the Senate returns from Easter recess on Monday, it’ll have been longer than the eight previous nominees for the job — combined.

Lynch, currently the U.S. attorney for the Eastern District of New York, cleared the committee February 26 by a vote of 12-8, with Republican Sens. Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona joining Democrats in sending the nomination to the full Senate.

Obama nominated Lynch to replace Attorney General Eric Holder on November 8, after Holder had announced plans to leave the post weeks earlier.

April 12, 2015 in Who Sentences? | Permalink | Comments (4) | TrackBack (0)

"Ending the Death Lottery"

The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:

When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment.  In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.

This Article explores this unfortunate phenomenon.  Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.

After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional.  The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.

Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review.  Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions.  Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment.  Next, Part VI proposes ways to remedy the constitutional shortcoming.  Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.

April 12, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Considering one defendant getting a second look due to Miller retroactivity

10juvenile-1-master675One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP.  Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant.  The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:

Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.

He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.

From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.

At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead.  Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.

But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....

The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.

Ten states, including Illinois, are applying the standard to pre­2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive.  The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....

Here and around the country, victim rights groups have strongly opposed the reopening of past sentences.  “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a co­founder and board member of the National Organization of Victims of Juvenile Murderers.

She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16­-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said.  “Our mother was devastated.”

A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop­-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone. 

Re­creating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.

Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....

Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.

The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence.  Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...

The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court.  During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.

April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Saturday, April 11, 2015

Reviewing Massachusetts' "long and tortured history" with the death penalty

The AP has this notable new piece headlined "in Massachusetts, a Long and Tortured Death Penalty History." Here are excerpts:

Massachusetts hasn't executed anyone since 1947, but during most of its history it allowed capital punishment for crimes ranging from murder to witchcraft.  Jurors weighing whether Boston Marathon bomber Dzhokhar Tsarnaev should die under the federal death penalty statute or spend the rest of his life behind bars are the latest to do so in a state with a long and tortured history with execution:

Using death as a punishment was common in the state's earliest days.  In one notable case, Mary Dyer, was put to death in Boston in 1660 after she was banned by the Puritan leaders of the Massachusetts Bay Colony for being a Quaker. Dyer returned several times in defiance of anti-Quaker laws and was eventually hanged. A statue of Dyer sits in front of the Statehouse as a caution against religious intolerance.  Capital punishment reached a new fervor a few decades later, when 19 people were hanged and one person crushed to death during the 1692 Salem witch trials.

Perhaps the most infamous Massachusetts death penalty case of the 20th century focused on Italian immigrants and committed anarchists Nicola Sacco and Bartolomeo Vanzetti. The two were arrested several weeks after a payroll clerk and a security guard were shot and killed during an armed robbery at a Braintree shoe factory.  The 1921 trial drew international attention.  After they were convicted and sentenced to die in the electric chair, political dissidents, unionists, Italian immigrants and other supporters ... demonstrated across the United States and Europe arguing the two were targeted for their political beliefs and immigrant status.  They were executed in 1927.  The case still remains contentious....

In the decades after the Sacco and Vanzetti trial, the appetite for capital punishment began to wane in Massachusetts.  In 1947, the state carried out its last executions, putting convicted murderers Philip Bellino and Edward Gertson to death in the electric chair at Charlestown State Prison.  Although capital punishment remained legal, governors refused to sign death warrants over concerns that the penalty offered no more safety for the community than life in prison....

In 1975, the Massachusetts Supreme Judicial Court curtailed capital punishment, holding that a mandatory death sentence for rape-murder constituted cruel or unusual punishment in violation of the state constitution's Declaration of Rights.  In 1982, voters approved a constitutional amendment that would have restored the death penalty and the governor signed a new law also reinstating capital punishment in certain cases.  In 1984, the court ruled that law unconstitutional saying it impermissibly burdened a defendant's right against self-incrimination and trial by jury.  The ruling effectively banned the death penalty.

In the 1990s there was a new push to revive the death penalty spearheaded by a series of Republican governors.  The effort gained momentum following the 1997 abduction and murder of 10-year-old Jeffrey Curley by two men who later received life sentences.  A death penalty bill filed in the wake of Curley's murder failed after a single lawmaker switched his vote during reconsideration.

In 2005 former Gov. Mitt Romney unveiled what he called the "gold standard for the death penalty in the modern scientific age" that would bring back capital punishment for people convicted of terrorism, multiple murders and killing law enforcement officers, using conclusive scientific evidence to ensure only the guilty were executed.  The bill failed.

April 11, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission

Though the US Sentencing Commission's vote yesterday to revise the fraud sentencing guidelines is very big news for white-collar sentencing in future high-profile federal cases (basic here), this notable sentencing reform got very little news attention.  Here are excerpts from this Reuters piece with the most fulsome coverage I have seen:

A federal judicial panel on Thursday adopted new guidelines for sentencing white-collar criminals in fraud cases, in an effort to make punishments more fairly reflect the harm suffered by victims and the intent of offenders to cause harm. The changes approved by the U.S. Sentencing Commission will take effect on Nov. 1 unless Congress objects.

They follow years of criticism from defense lawyers and some judges who say federal sentencing guidelines have led to overly severe punishments, potentially reaching life in prison, because they emphasize financial losses such as from falling stock prices. Judges need not follow the guidelines, but must consider them. "These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss," said Chief Judge Patti Saris of the federal court in Massachusetts, who chairs the commission.

The changes call for "intended" losses to reflect financial harm that defendants "purposely sought to inflict," and give judges greater discretion in factoring actual losses in stocks, bonds or commodities into punishments. They also permit greater punishments when even just one or a few people suffer "substantial financial hardship" from fraud, while current guidelines emphasize the number of victims, even if their losses are small. Another change adjusts fraud losses for inflation for the first time.

The U.S. Department of Justice had expressed concern that the new definition of intended loss could let defendants claim they never intended to financially harm anyone. It also said an inflation adjustment could negate the "overwhelming societal consensus" favoring tougher punishments for fraud, and reduce the length of typical sentences by roughly one-fourth. On the other hand, the Justice Department welcomed the greater focus on actual harm inflicted. A Justice Department spokesman declined to comment on Thursday.

David Debold, a Gibson, Dunn & Crutcher partner who led an advisory group to the commission, said the changes on balance "tend to make sentences more fair" in fraud cases. "They make punishment better reflect the harm that defendants actually intended," he said. "That's an important change, and a good one."

Prior related post:

April 10, 2015 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.

April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Penalty phase in Boston Marathon bombing capital trial scheduled to start April 21

As reported in this NBC News piece, the "penalty phase in the federal trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev will begin on April 21, a judge ordered Friday." Here is more:

The jury has been asked to come to court next week — on April 14 — to receive a brief set of instructions. This year's Boston Marathon will be held on April 20. "The defendant has requested that the penalty phase commence in approximately two weeks so as to, among other things, allow the defendant additional time to resolve outstanding logistical issues with a number of potential witnesses. It is not uncommon for there to be a brief recess between phases in a capital case," Judge George O'Toole said in the order.

Tsarnaev, 21, was convicted for his role in the April 15, 2013, twin bombings that killed three people and injured 260 others at the Boston Marathon — the worst terror attacks on American soil since 9/11. A jury found him guilty Wednesday on all 30 criminal counts. Seventeen of the 30 counts carry the possibility of the death penalty.

This related NBC News piece has some interesting poll data reported under the headline "Americans Divided Over Death For Boston Bomber Dzhokhar Tsarnaev, Poll Finds."

Recent related post:

April 10, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack (0)

Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

Long-time readers may recall the remarkable state sentencing story, covered here and here,  involving Daniel Enrique Guevara Vilca.  In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children.  On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today.  Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):

Daniel Guevara-Vilca appeals his convictions for possession of child pornography.  Owing to a discovery violation by the State, we reverse and remand for a new trial....

During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count.  The file names generally contained descriptive terms.  All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program.  The files were found in thirteen different folders on the computer, including the recycle bin....

The jury returned guilty verdicts on all 454 counts.  Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment.  The trial court sentenced Guevara-Vilca to 454 concurrent life terms....

Guevara-Vilca raises multiple issues on appeal.  We agree with his assertion that the trial court erred in its handling of the State's discovery violation.  The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....

We reverse Guevara-Vilca's convictions and remand for a new trial.  This renders moot, for now, the sentencing issue raised on appeal.  Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment.  Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand.  But the issue, if raised, deserves serious consideration by the sentencing court.  Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.

Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors.  Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's."  Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).

Prior related posts:

April 10, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack (0)

Highlighting and assailing Prez Obama's "weak approach to pardons" and Clemency Project 2014

Today's Washington Post has this potent new commentary authored by George Lardner Jr. and P.S. Ruckman Jr. headlined "Obama’s weak approach to pardons." Here are extended excerpts:

When it comes to the pardon power, President Obama is still more talk than action. According to the most recent Justice Department data, he has granted only one pardon for every 29 petitions that have come before him, fewer than any of the past seven presidents.  Last week, he signed 22 commutations, but his record on those is even more dismal because he has such a staggering backlog, the biggest of any president in U.S. history.  It is a backlog that he and his administration invited.

But you wouldn’t know that from his rhetoric.  In a recent interview with Buzzfeed, the president said, “We’ve revamped the pardoning office in the Justice Department because, traditionally, we weren’t reaching a lot of nonviolent offenders who, if they received a pardon, perhaps would be in a better position to get employed.”...  What he didn’t say is that he has let those applications pile higher and higher.

The Justice Department named a new pardon attorney in November, and her overburdened office now has more lawyers than before — but if that was the “revamping,” it has yet to produce significant results.  Despite receiving unprecedented numbers of petitions, Obama has granted only 64 pardons and 43 commutations.  Only six other presidents have been less merciful, and most of those served a single term or less.

Without counting a program called Clemency Project 2014, which makes his record worse, Obama has granted just one of every 779 commutation petitions addressed to him.  Every president since Richard Nixon (who approved one of every 15 commutation petitions) did better....

Obama’s “new approach” to pardons remains just a promise.  More than a year ago, the Justice Department announced that Clemency Project 2014 would aim to find federal prisoners who deserved a commutation, which reduces the severity of a sentence.  But pardons, which forgive applicants for their crimes and restore their civil rights, were excluded.

This drive for more commutations has become a disaster, notwithstanding last week’s action.  When the project was announced in early 2014, then-Deputy Attorney General James M. Cole asked the legal profession for help in composing “effective and appropriate” petitions for inmates serving harsher sentences than they would have received “if convicted of precisely the same offenses today.”  Since then, The Post reports, more than 35,000 inmates — some 16 percent of the federal prison population — have asked for commutations under the initiative. And since then, Obama has commuted just 34 sentences.

More than 1,000 lawyers at more than 300 law firms have offered to participate in Clemency Project 2014. Yet little more than 5,000 of the 35,000 applications have been assigned to a lawyer....

The unduly restrictive rules spelled out by Cole last spring are an even larger problem. It should not be too difficult for prisoners to show they got a stiffer sentence than they would have received today, but that’s not enough.  Under the criteria, a prisoner must have served at least 10 years, have no significant criminal history and have had no involvement with gangs, cartels or organized crime.  The program also penalizes prisoners who previously asked for commutations by placing Clemency Project 2014 petitioners in line ahead of them.

Just as troublesome is the fact that the critical decisions about whether the rules have been met have been farmed out to private organizations — the ACLU, Families Against Mandatory Minimums, the American Bar Association and the National Association of Criminal Defense Lawyers.  These are fine groups, but the pardon power is supposed to be reserved for the president, and saying no, which these private agencies can do, is as much an exercise of that power as saying yes.

To Obama’s credit, he wrote a letter to the 22 inmates whose sentences he commuted. All of them had been convicted of nonviolent drug offenses, in many cases under punitive rules no longer in effect.  But there must be hundreds if not thousands more who are just as qualified. It was a nice try by the White House to say last week that Obama’s commutation record was now better, numerically, than George W. Bush’s. What it didn’t say was that Bush’s record on commutations (11) was one of the worst in history and that he granted almost three times as many pardons as Obama has (188 to 64).

President Obama keeps referring to the Justice Department as though it were in charge of the process while he remains a frustrated bystander.  He conceded in South Carolina that “we have a pretty strict set of criteria” for grants of clemency, but he spoke as though he was handcuffed by those criteria (when, in fact, he isn’t).  Criticisms of the pardon process usually focus on the prosecutorial mindset of officials at Justice and blame them for rejecting too many deserving applications.  It’s time for the president to take the heat and stop letting Justice be the scapegoat.

April 10, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Thursday, April 9, 2015

"Reality check: Is sex crime genetic?"

ImagesThe question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way.  Here are excerpts:

A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.”  The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.

But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.

Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse.  Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....

Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns.  Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well.  Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.

The team did do some analysis by type of offense, separating rape from child molestation, for example.  But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature.  There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.

In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse.  In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.

The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....

In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses.  But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.

April 9, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack (0)

Effective coverage of legal land mine created by DOJ spending restriction in medical marijuana cases

As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Today, the New York Times has this extended and informative discussion of this federal congressional directive and its uncertain meaning and impact four months after its enactment.  The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:

In December, in a little­-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

In the most advanced test of the law yet, [medical marijuana defendant Charles] Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.”  In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”

But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.

With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....

The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance.  “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.

Mr. Farr said, “For the feds to come in and take this hard­line approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.”  The sponsors said they were planning how to renew the spending prohibition next year.

Some prior related posts:

April 9, 2015 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)

As reported in this official press release, "United States Sentencing Commission voted today to adopt changes to the fraud guideline to address longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender’s intent. The Commission also voted to change the drug quantity table to account for the rescheduling of hydrocodone." Here are some details from the press release concerning this important federal white-collar sentencing news:

The Commission altered the victim enhancement in the fraud guideline to ensure that where even one victim suffered a substantial financial harm, the offender would receive an increased sentence. It also made changes to refocus economic crime penalties toward the offender’s individual intent, while maintaining an underlying principle of the fraud guideline that the amount of loss involved in the offense should form a major basis of the sentence.

“We found through comprehensive examination that the fraud guideline provides an anchoring effect in the vast majority of cases, but there were some problem areas, particularly at the high-end of the loss table,” said Chief Judge Patti B. Saris, chair of the Commission. “These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.”

The Commission also acted today to provide additional guidance as to which offenders are eligible to receive a reduced sentence as a minor or minimal participant in an offense. “This change is intended to encourage courts to ensure that the least culpable offenders, such as those who have no proprietary interest in a fraud, receive a sentence commensurate with their own culpability without reducing sentences for leaders and organizers,” Saris said....

The Commission also made an adjustment to monetary tables to account for inflation. This goodgovernment measure derives from a methodology provided by Congress and will have an effect on both penalty and fine tables.  The amendments will be transmitted to Congress by May 1, 2015. If Congress does not act to disapprove some or all of the amendments, they will go into effect November 1, 2015.  More information about this process and the amendments approved today will be available on the Commission’s web site at www.ussc.gov.

At the USSC's website, one can now find this "Preliminary 'Reader-Friendly' Version of Amendments. Though "reader-friendly," the amendments themselves do not really provide a complete picture of just how much these amendments, assuming they are not disapproved by Congress, could impact guideline-sentencing ranges in future high-loss white-collar cases.  In addition, and of perhaps particular interest to some currently incarcerated  defendants, the Commission has to my knowledge not yet indicated in any formal documents whether, when and how it might consider making these amendment retroactive in a manner that might impact past high-loss white-collar cases.

IMPORTANT FRAUD AMENDMENT RETROACTIVITY UPDATE: A helpful colleague who was able to watch the USSC meeting and votes provided this report on the topic of the potential retroactivity of these amendments:

At the end of the hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. USSC Chair Saris asked whether anyone wanted to make such a motion and no one did. Saris then read a brief statement saying they have a statutory obligation to consider whether any amendments should be retroactive, and they had determined in this case that for these amendments that would not be appropriate.

Notably, if Congress was truly eager to help with prison-crowding problems by doing something for some notable non-violent offenders, I think Congress could provide by statutory direction either that the amendments be made retroactive in whole or in part (or it might at least direct that the Commission consider more fully whether these amendments be made retroactive in whole or in part). Also, back in 2007, when the crack guidelines were first adjusted downward slightly, the Commission did not take up the retroactivity issue until many months after it promulgated amendments lowering the guidelines. But, I suspect absent some significant advocacy by the white-collar defense bar, the die may be already permanently cast against any even partial retroactivity of these new fraud amendments.

April 9, 2015 in Federal Sentencing Guidelines, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Intriguing Sentencing Project analysis of a new analysis of state-by-state incarceration trends

The Sentencing Project has this notable little analysis of variations in incarceration trends in different states across the country.  Here is the e-mail I received explaining the details:

This comparative analysis of recent changes in state and federal prison populations contextualizes the scale and timing of efforts to downsize prisons.  Through customized measures for each jurisdiction — calculating declines since each jurisdiction's peak year, and increases in other states since 2008 — we assess the full impact of recent policy changes.  The analysis reveals:

  • While the total U.S. prison population declined by 2.4% since 2009, incarceration trends among the states have varied significantly.  Two-thirds (34) of the states have experienced at least a modest decline, while one-third (16) have had continuing rises in imprisonment.
  • Nine states have produced double-digit declines during this period, led by New Jersey (29% since 1999), New York (27% since 1999), and California (22% since 2006).  Sixteen states, and the federal government, have had less than a 5% decline since their peak years.​​
  • Among states with rising prison populations, five have experienced double-digit increases, led by Arkansas, with a 17% rise since 2008.  While sharing in the national crime drop, these states have resisted the trend toward decarceration.

These findings reinforce the conclusion that just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, it will require ongoing changes in both policy and practice to produce substantial population reductions.

April 9, 2015 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Notable new attacks on Senator Rand Paul from (conservative?) folks at Crime & Consequences

I often view the "who, when and how" of criticisms of political figures to be a more telling indication of the importance of a politician than the substance of the criticism.  Given that perspective, and the fact that the bloggers at Crime & Consequences are among the most influential and effective advocates of "tough-on-crime" ideas and rhetoric, I find quite notable that two different C&C bloggers yesterday posted quickly these three critiques of GOP Senator Rand Paul and his efforts to become the 2016 Republican nominee for President:

The first C&C post linked above asserts that Senator Paul's criminal-justice-reform commitment "sets him apart from most Republican voters," and the last post linked above asserts that Senator Paul's statement in his Prez candidacy launch speech (basics here) reflects a stunning measure of "ignorance and stupidity."  Wowsa.

I suspect most of the C&C bloggers typically cast votes in GOP primaries, and I am now pretty confident that Senator Paul should not be counting on them for support.

Prior related posts:

April 8, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)

As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in.  (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.)  But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:

On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.

At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....

At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.

DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.

Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.

DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.

It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.

But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.

In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.

There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.

DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.

April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"

The quoted portion of the title of this post is the headline of this New York Times report on the outcome of the guilt phase of the on-going capital trial of the Boston Marathon Bomber, and the preamble to that quote is my (pithy?) commentary about what this means. Here are the basics on what has happened so far and what is still forthcoming:

In the silent well of Courtroom Nine, a clerk read out the verdicts: Guilty. Guilty. Guilty. The word echoed in the courtroom as the clerk pronounced it 30 times, once for each of 30 counts.

By the end of the 25­minute roll call of charges, a federal jury here had left no doubt how thoroughly it sided with the government against Dzhokhar Tsarnaev in connection with the 2013 bombings at the Boston Marathon. Mr. Tsarnaev, 21, a failing college student and the youngest child in a dispersed immigrant family, stood without expression, his arms folded in front of him, flanked by his lawyers.

The verdicts set the stage for a second, more contentious phase of the trial in which the same jury will decide whether to sentence Mr. Tsarnaev to life in prison or death....

There was little doubt that the jury would find Mr. Tsarnaev guilty of most charges; his lawyers have admitted that he had been involved in the bombings, and they put on a minimal defense, calling four witnesses who testified for five hours. The government, by contrast, called 92 witnesses over 15 days. Still, in the first phase of the trial, the defense laid the groundwork for the sentencing phase, casting their client as subordinate to his older brother, Tamerlan, and less culpable for the crimes. The defense team’s goal now is to explain mitigating factors in hopes that jurors will sentence Mr. Tsarnaev to life in prison.

After the verdict was read, the judge, George A. O’Toole Jr. of Federal District Court here, told the jurors that the case would proceed to a second, penalty phase that could begin as early as next week. He cautioned the jurors that they were still “an active jury, subject to your oath,” and to not discuss the case with anyone....

The defense hopes to present mitigating circumstances that show him as less culpable than his brother. It will flesh out details of Mr. Tsarnaev’s life and family history, which includes his forebears being expelled by Stalin from Chechnya in 1944 and ending up in Kyrgyzstan. His family settled in Cambridge, Mass., in 2002. As his parents divorced and returned to Russia, Mr. Tsarnaev, who became an American citizen on Sept. 11, 2012, fell increasingly under the sway of his older brother.

Just as defense lawyers seek to impress the jurors with the reasons they should spare Mr. Tsarnaev’s life, the prosecution will impress upon them the consequences of his murderous actions. Survivors of the blasts and the families of victims are expected to testify in this next phase, as they did in the first, this time detailing the physical and emotional effects of the bomb blasts on their lives. Others are expected to discuss how the crime gripped the Boston area in fear for five days.

This news broke as I was teaching my sentencing class this afternoon, and I predicted that defense attorneys may urge that the penalty phase of the trial not begin until May, at the earliest, partially because next week will mark the two-year anniversary of the bombing and the following week is when next Boston Marathon is schedules. I suspect the defense will contend that these realities create too much of a prejudice risk if the penalty phase starts ASAP, and I think it is possible federal prosecutors might not oppose any requested delay in order to avoid creating another possible appellate issue if the jury returns a death verdict.

April 8, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)