Wednesday, May 8, 2013
Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 monthsAs had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:
Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.
The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.
In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.
A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh.... Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.
A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below. Here are the essential pieces of the deal:
The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.
For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines. Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.
Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range. The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.
The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....
Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range. However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.
May 8, 2013 in Enron sentencing, 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 (4) | TrackBack (0)
"Federal Public Defense in an Age of Inquisition"The title of this post is the title of this notable new article by federal public defender David Patton, which is now available via SSRN. Here is the abstract:
This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process.
Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law. This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.
After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOPAs reported in this new USA Today article, "Jodi Arias, convicted of first-degree murder of her on-and-off lover, says she was surprised by the jury's verdict Wednesday and hopes for the death penalty over life in prison." Here is more:
Arias, who choked back tears as the jury's decision was read, told KSAZ-TV in a courthouse interview after the verdict was announced that she was surprised the jury found her guilty of premeditation in the death of Alexander. "It was unexpected for me, yes, because there was no premeditation on my part," she said.
She said she would "prefer to die sooner than later" and that "death is the ultimate freedom." The Maricopa County sheriff's office said in a statement that Arias was being put on a suicide watch because of her interview comments.
The 12 jurors deliberated reached a verdict after deliberating less than three full days. The televised trial, which began Jan. 2, gained notoriety for its accounts of gore and sex....
Arias spoke to Fox affiliate KSAZ in an exclusive courtroom interview about 20 minutes after the verdict was read. Arias was mostly calm and chose her words carefully during the 45-minute interview, appearing to hold back tears a few times, much as she did during the trial, according to the interview.
She said she hoped her sentence would be the death penalty. "The worst outcome for me would be natural life (in prison). I would much rather die sooner rather than later," she said.
Arias said she is healthy, doesn't smoke and that longevity runs in her family. That means she would expect to live in prison for a long time. "I said years ago I'd rather get death than life," she said. "I believe death is the ultimate freedom."
Arias added that she hopes the family of victim Travis Alexander can find peace now that the verdict has been rendered. She said she prayed for members of the jury every day and was shocked that they decided the killing was pre-meditated. Arias said she could "see how it could look that way" but that "there was no premeditation on my part."...
Maricopa County Attorney Bill Montgomery issued a statement after the verdict was read, saying, "We look forward to the next phase of the proceedings, where the state will present evidence to prove the murder was committed in an especially heinous, cruel, or depraved manner."...
Defense attorneys contended that Arias killed Alexander in June 2008 in an unplanned fit of rage as she reacted to what attorneys portrayed as his pattern of emotional and physical abuse. It had cost Maricopa County taxpayers at least $1.7 million as of late April to defend Arias.
I have not followed this case closely until now, and it will be interesting to see if the capital sentencing proceedings in the days and weeks ahead garner as much attention as the trial did. It will also be interesting to see if Arias and/or her attorneys expressly request the sentencing jury to impose a death sentence.
Based on various press reports, I surmise that Arias appears to be a effective liar, and thus I cannot help but wonder if her desire for a death sentence is not really a desire to die sooner. A shrewd defendant in Arias' position would know that her case and appeals would be sure to get a lot more attention, from courts and abolitionist activists, if she were to be sentenced to death. If Arias gets an LWOP sentence, her life and crimes will likely be forgotten in a few years. But if she gets sentenced to death, we will likely be seeing her name in the papers during each round of legal appeals for decades to come.
Senate hearings scheduled this afternnon for two of Prez Obama's USSC nomineesAs detailed on this official Senate Judiciary Committee webpage, today at 2:30pm there is a scheduled a hearing on "Nominations" which includes the nomination of "William H. Pryor, Jr., to be a Member of the United States Sentencing Commission" and "Rachel Elise Barkow, to be a Member of the United States Sentencing Commission."
Regular readers may recall from this prior post that I am very excited about all three of the new nominees to fill open spots on the USSC. I am thus thrilled to see two of these nominees get a hearing only a few weeks after their nomination, but also a bit puzzled about why US District Judge Charles Breyer is not also having a hearing. (As a matter of pure speculation, I am inclined to guess that Judge Breyer's nomination is more controversial perhaps because of his brother's status as a sitting Supreme Court Justice.)
Because I will be on the road all afternoon, I will not be able to follow closely this scheduled hearing, but others can watch it live via this link. I am eager to hear reports on whether the questioning of these two nominees are tough or sweet, as well as whether their views on the import and importance of federalism concerns come up. (I would also love to see Senators Leahy and Paul ask the nominees whether they share my perspective on the proposed Justice Safetly Valve Act of 2013.)Some recent and older related posts:
- Prez Obama makes three great new nominations to the US Sentencing Commission
- If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
- "How can a member of the US Sentencing Commission promote federalism?"
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
Like perhaps many others, I have feelings ranging from horror to disgust to macabre interest as facts emerge from Cleveland concerning the many awful crimes committed on at least three young women for a decade. This USA Today story provides just a small flavor of what the victims may have endured for years upon years upon years:
Cleveland police say they'll delay "deep questioning" of Amanda Berry, Gina DeJesus and Michelle Knight as they get acclimated to their families and freedom. While the three appear to be in good health, a disturbing tale of sexual assault, physical abuse, bondage and other horrors is already emerging....
The Castro brothers allegedly forced all three women to have sex, resulting in up to five pregnancies, according to a report by Cleveland's WKYC-TV. The station, quoting unnamed law enforcement sources, reported that the Castros also beat the women while they were pregnant, with several unborn children not surviving....
A law enforcement official said there is some evidence that the victims were held in chains during at least part of their captivity. The official, who is not authorized to comment publicly, did not elaborate on other conditions of their confinement or whether they were ever moved from the home.
In addition, Khalid Samad, a former assistant safety director for the city, said law enforcement officials told him that the women were beaten while pregnant, with unborn children not surviving, and that a dungeon of sorts with chains was in the home.
I cannot help but wonder if the Supreme Court's decision to categorically precluding consideration of the death penalty for even repeat and aggravated child rape in its 2008 Kennedy opinion might well have come out differently had this horrific Cleveland story been known at that time. Perhaps because I am a blood-thirsty SOB or just because I know what kind of justice I would want if someone abducted and sexual tortured my children in a dungeon for a decade, my guttural first sentencing thought in this case is some regret that a team of men who rape and torture young girls for over four presidential administrations cannot even face the prospect of our ultimate punishment for these kinds of crimes.
That said, as the title of my post here hints, Ohio law might provide a real and realistic basis to purpose a death penalty charge if there is significant evidence showing that the offenders, through physical abuse and forms of torture, "purposely ... cause[d] ... the unlawful termination of another's pregnancy." If the defendants beat their victims with an intent to cause them to miscarry, they could well be prosecuted in Ohio with Aggravated Murder pursuant to Ohio Revised Code 2903.01(B).
Of course, a lot more facts are going to need to be known and analyzed before anyone should jump to the conclusion that capital murder charges are possible in this high-profile case. But because Ohio's statutes expressly reference "unlawful termination of another's pregnancy," I would expect and certainly hope that local prosecutors are already thinking about bringing homicide charges as well as rape and kidnapping charges in this case. Ohio's legislators, by having amended the state's Aggravated Murder provisions to expressly included purposely causing the unlawful termination of another's pregnancy, indicated an interest in the possibility that the "worst of the worst" sorts of "pregnancy terminators" should possibly face the death penalty. Based on the facts so far known, I feel very comfortable asserting that the defendants in Cleveland are likely among the "worst of the worst" sorts of "pregnancy terminators."
May 8, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (26) | TrackBack (0)
"The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate"The title of this post is the title of this notable new paper by Jamila Jefferson-Jones now available via SSRN. Here is the abstract (which prompts for me a reaction of "cool" rather than "yuck"):
Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010. This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery. The price of their liberty: Gladys’ kidney.
The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” — a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.
What happens, then if the Scott Sisters’ story is replicated — if it is multiplied across prison populations? Were programs put into place that allowed prison inmates to trade their kidneys (or portions of their lungs, livers or pancreases) for liberty, it follows that the “yuck factor” would be multiplied exponentially. However, it must be noted that in confecting his peculiar clemency condition, Governor Barbour chose a course of action that was, ironically, unobjectionable to the civil rights community (including the state’s Black activist community) that was clamoring for the release of the Scott Sisters. If one were to cast the civil rights community as guardians of (or at least stakeholders regarding) the interests of poor and minority communities, the Scott Sister’s clemency case is particularly intriguing in that they cheered, rather than crying, “Yuck!” and objecting to the terms of release imposed by the Governor. The outcry from some bioethicists notwithstanding, this scenario begs the question of why we should not allow other prisoners — those to whom serendipity has not provided an ailing sister — to do the same and whether it is in fact possible to do so while avoiding, or at least mitigating repugnance.
This article contemplates whether the National Organ Transplant Act’s (“NOTA”) prohibition against the trading of organs for “valuable consideration” should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release. Such a stance surely raises questions regarding whether the state would be coercing the forfeiture of body parts as punishment or in exchange for freedom. Moreover, critics may question the potential effects on the criminal justice system of allowing those facing incarceration to bargain their bodies, and conceivably, their long-term health, in exchange for reduced prison terms. Therefore, such an inmate organ donation program is only feasible if a system is confected to remove the “yuck factor” ostensibly by removing coercion from the equation and by addressing the other concerns that mirror those addressed in the living donor sales debate. Such a program would need to reframe the legal context in which the Scott Sisters’ clemency condition was crafted into one in which a great measure of power and choice resides instead in the hands of the inmate participants.
May 8, 2013 in Clemency and Pardons, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack (0)
Tuesday, May 7, 2013
Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some of the ideas first expressed in this recent post concerning the proposed Justice Safetly Valve Act of 2013 now find expression in this Wall Street Journal opinion piece we co-authored. Here is are snippets from the the piece:
There are few topics on which leading Democratic and Republican voices agree these days. But the recently introduced Justice Safety Valve Act of 2013 — which would authorize federal judges to impose prison terms below statutory mandatory minimums in some cases — represents a new bipartisan effort at addressing America's overcrowded prisons and bloated budget. Passage of the act, though, will depend on President Obama and his Justice Department getting behind it....
The Justice Safety Valve Act, recently introduced by Sens. Patrick Leahy (D., Vt.) and Rand Paul (R., Ky.), and to the House by Reps. Robert C. "Bobby" Scott (D., Va.) and Thomas Massie (R., Ky.), could help reduce the millions of taxpayer dollars wasted keeping thousands of people sentenced under mandatory minimum laws locked up. The bill would enable federal judges to consider when or whether a mandatory-minimum sentence serves legitimate law-enforcement purposes given the particular circumstances of the crime and defendant. Judges could impose prison terms below the statutory minimums only when they explain, through an on-the-record, reviewable opinion, that a shorter term is sufficient to serve the express goals of the criminal justice system set out by Congress....[B]ipartisan support and sponsorship of the Justice Safety Valve Act highlights that prominent lawmakers on both sides of the aisle agree — at this time of lean budgets, sequester cuts and overcrowded prison facilities — that the current federal sentencing scheme is neither fair nor effective, and that mandatory-minimum sentencing laws lie at the heart of the problem.
President Obama's vocal support of this bill would signal a real commitment to using his bully pulpit to advocate on behalf of significant reform proposals. If he does not, the president's failure to champion sentencing reform may become his most lasting federal criminal-justice legacy.
Some recent and older related posts:
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
May 7, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack (0)
Wait, Wait ... Don't forget to set your DVR for Constitution USA with Peter Segal
As explained on this PBS webpage, a great new four-part series about the US Constitution is premeiring tonight on many local PBS stations. Here are the basics via a couple links on the official PBS website:
Does the Constitution have what it takes to keep up with modern America? Join Peter Sagal, host of NPR’s Wait Wait… Don’t Tell Me! as he hits the road to find out. Traveling across the country by motorcycle, Sagal is in search of where the U.S. Constitution lives, how it works and how it doesn’t… how it unites us as a nation and how it has nearly torn us apart.
CONSTITUTION USA,... is hosted by Peter Sagal.... Over the course of the four-hour series, Sagal hits the road, travelling cross country on a customized red, white and blue Harley-Davidson, to find out where the Constitution lives, how it works, and how it unites us as a nation. From New York to San Francisco, from Missoula, Montana to Tyler, Texas, Sagal visits dozens of cities and small towns across America introducing viewers to some of today’s major constitutional debates — free speech in the digital age, same-sex marriage, voting rights, separation of church and state, presidential power in the post-9/11 world, to name just a few — and the fascinating stories of the people they affect every day.
And for each contemporary story, Sagal dives into the history behind it and talks to prominent legal scholars, historians and public figures, finding out what the Constitution says, the dramatic historical events and crises that defined the Constitution, and why all this matters. Each one-hour episode of CONSTITUTION USA vividly illuminates a central theme essential to the Constitution.
A More Perfect Union: Peter explores the Constitution’s most striking and innovative feature: its resilient brand of federalism. The framers created a strong national government while at the same time preserving much of the power and independence of the states. This delicate balance of power, seemingly hard-wired for disagreement and conflict, has served America well for more than two centuries. But it has also led to tensions throughout American history and still sparks controversy today over medical marijuana, gun control, and Obamacare.
It’s a Free Country: Ask Americans what the Constitution’s most important feature is, and most will say it’s the guarantees of liberty enshrined in the Bill of Rights. In this episode, Peter explores the history of the Bill of Rights, and also takes on several stories ripped from the headlines, involving freedom of speech, freedom of religion, and right to privacy.
Created Equal: The high ideals of the Declaration of Independence that “all men are created equal,” endowed with “unalienable rights,” didn’t make it into the Constitution in 1787. It took three-quarters of a century, and a bloody civil war, before the Fourteenth Amendment of 1868 made equality a constitutional right, and gave the federal government the power to enforce it. The far-reaching changes created by that amendment established new notions of citizenship, equal protection, due process, and personal liberty and today those notions are being used to fight for same sex marriage, voting rights, affirmative action, and immigration reform.
Built to Last?: In this last episode, Peter travels to Iceland where a few years after the country’s economic collapse, leaders decided to create a new constitution, turning to the U.S. Constitution for inspiration. This prompts Peter to consider why our own founding document has been able to last for more than 225 years. He looks at the systems that have kept the Constitution healthy — amendments, judicial interpretation, checks and balances — and also at the political forces that threaten to undermine the framers’ vision: excessive partisanship leading to gridlock, money in politics, and gerrymandering.
"The Case for Full Restitution for Child Pornography Victims"The title of this post is the title of this new paper on SSRN co-authored by Paul Cassell, James Marsh and Jeremy Christiansen concerning an issue that has riven the federal circuit courts and seems destined for SCOTUS consideration before too long. Here is the abstract:
This Article explores the issues of restitution to the victims of child pornography and other federal sex offenses in depth and contends that Congress meant what it said in Section 2259 — specifically that child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them. This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses. Requiring defendants to pay for the full amount of the losses that they have caused will address the significant financial losses suffered by child pornography victims.
May 7, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack (0)
Are sexy and jobless now the best adjectives to describe federal criminal justice in SD Ohio?The somewhat bizarre and silly question in the title of this post was my reaction to this somewhat bizarre and not-so-silly article in my own Columbus Dispatch this morning concerning the US Attorney and (former) Chief Federal Public Defender in the Southern District of Ohio. Here are the details:
It turns out that at least one Columbus lawyer ranks pretty high in sexiness. According to a popular business- and technology-news website, the No. 2 sexiest lawyer in America is the city’s own Carter Stewart, the U.S. attorney for the Southern District of Ohio.
“He doesn’t know how he got on the list,” said Fred Alverson, a spokesman for Carter’s office in Columbus. “By that, I mean we don’t know how he got noticed, but we’re honored he’s at the top of the list.” Stewart, 44, is a Harvard Law School graduate and has been in his current job since 2009.
First on the Business Insider list, not surprisingly, is California Attorney General Kamala Harris. President Barack Obama called her “by far the best-looking attorney general in the country” at a fundraising event in early April.
Though his animal magnetism was never brought up, Stewart’s opposite number, Steve Nolder, made an appearance on Comedy Central’s The Daily Show last week. Daily Show reporter and comic Aasif Mandvi traveled the country to learn how the federal sequestration is affecting people, and he came to Columbus to interview Nolder, the federal public defender for the Southern District of Ohio.
A straight-faced Nolder told Mandvi he hadn’t had to fire any employees in his office because of the automatic federal spending cuts. Instead, he fired himself. “That’s stupid,” Mandvi blurted out. After that, Mandvi took Nolder to “the only place he can now afford to eat” — a Columbus soup kitchen.
Nolder’s decision to ax his own position is no joke. He has been with the public defender’s office in Columbus since it opened in 1995 and has been moved to tears several times when talking about his decision to leave the job he loves.
I have embedded the Daily Show segment in which Steve Nolder appears at the very end of the end. Though I am not exactly an expert on sexy (and though I am surely biased toward folks who are follicly-challenged like me), I think Nolder might be able to give Carter Stewart a run for his money on that adjective. Jokes aside, though, I wish there was a well-staffed US criminal justice research commission (hint: USSC) or federal department focused on the administration of justice (hint: DOJ) who would be regularly reporting to the press and others on the seemingly very serious impact that the sequester seems already to be having on the day-to-day operation of the federal criminal justice system.
Recent related posts on federal sequester:
- Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
- Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
- "How the Sequester Threatens the U.S. Legal System"
- Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"
"Florida tries to speed up executions as Maryland, other states repeal death penalty"The title of this post is the headline of this recent FoxNews story, which actually does provide a relatively fair and balanced perspective on some recent capital punishment legislative developments:
While other states move to abolish capital punishment, Florida lawmakers are taking an entirely different approach -- trying to speed up executions for death row inmates.
The Republican-controlled legislature has sent a bill to Gov. Rick Scott that, if signed, would require the governor to sign execution warrants 30 days after the state Supreme Court reviews cases. It would require the state to execute a prisoner within 180 days of a warrant being signed. The legislation also sets new deadlines for death row appeals.
The bill arrives on Scott’s desk just days after Maryland became the sixth state in as many years -- and the 18th state overall -- to abolish the death penalty. Democratic Maryland Gov. Martin O’Malley signed the bill Thursday, ending what supporters said was decades of racial and socio-economic disparity in death penalty sentencing.
Supporters of the Florida legislation claimed their bill was aimed at improving -- rather than abolishing -- a broken system. They argue it puts an end to condemned prisoners sitting for years on death row -- often through what they consider unnecessary delays in the so-called “post conviction” process.
Republican state Sen. Joe Negron, the bill's sponsor, on Monday called that situation a “mockery” of the criminal justice system. “We believe in due process,” Negron told FoxNews.com. “But this is about cases in which there is no allegation of innocence and a succession of motion after motion.”
He and fellow state Sen. Rob Bradley also argue the bill ends the long waits that surviving families and others must endure between a murder and the justice they seek. “This bill is about closure,” Bradley told The Florida Courier.
The average stay on Florida’s death row before being executed is roughly 13 years, according to state records.
Critics of the legislation, however, question why legislators would want to, in effect, accelerate the appeals process, considering 24 people on death row have been exonerated since Florida resumed executions in the 1970s, which is more exonerations than in any other state. “It is both tragic and ironic that the state that sends the highest number of wrongfully convicted people to death row is considering speeding up executions,” said Mark Elliott, of the group Innocent on Death Row. “Speeding up executions virtually guarantees that innocent people will be executed.”
The legislation attempts to fix the problem of the accused getting shoddy legal services by suspending lawyers for five years from handling death appeals if they are found twice to have provided deficient representation.
Corrupt state supreme court judge and sister facing state sentencing in PAAs reported in this local article, headlined "Former Pennsylvania Justice Orie Melvin, sister face sentencing today," a high-profile corruption case in the Keystone State has finally reached the sentencing stage. Here are the basics:
Former Pennsylvania Supreme Court Justice Joan Orie Melvin and her sister and former court aide Janine Orie will be sentenced today by Allegheny County Common Pleas Judge Lester Nauhaus.
Prosecutors, in briefs filed before the court last month, are seeking incarceration for Ms. Orie Melvin and for her sister, who were convicted in February of misusing state-paid employees in Ms. Orie Melvin's campaign for a seat on the high court in 2003 and 2009. The sisters were found guilty of theft of services, conspiracy and misapplication of government funds. Janine Orie was also convicted of tampering with evidence and solicitation.
In their briefs, Ms. Orie Melvin's defense attorneys asked for probation, citing her dedication to public service, charitable work and her devotion to her family and the hardship incarceration would bring upon her family, including her six children and elderly father.
The sisters were charged with misapplication of government funds, theft of services and conspiracy for using the justice's former Superior Court staff and the legislative staff of a third sister, former state Sen. Jane Orie, to run campaigns for the Supreme Court in 2003 and 2009. Among the allegations were that staffers wrote speeches, drove Ms. Orie Melvin to campaign events and worked the polls....
At the time of the verdict, Matt Mabon, the jury foreman, explained that the jury couldn't reach a decision on the official oppression count, which was connected to the employment of Lisa Sasinoski, chief law clerk for the justice who was a witness. Because there were competing versions of whether she was fired or resigned, jurors couldn't reach a decision, he said.
Ms. Orie Melvin voluntarily stopped hearing cases before the high court when she was indicted a year ago, just hours before the court issued an order suspending her to "preserve the integrity" of the system. That same day, the Pennsylvania Judicial Conduct Board issued a recommendation that she be suspended with pay pending resolution of the criminal case, but in August, the Court of Judicial Discipline ruled that Justice Orie Melvin should not be paid during her suspension. Her salary at the time was $195,309.
Justice Orie Melvin fought unsuccessfully to have the charges against her dismissed, claiming that the Supreme Court itself should have jurisdiction over the allegations and not the criminal courts. A month after the verdict, on March 25, Ms. Orie Melvin announced, in a letter to Gov. Tom Corbett, that she would resign May 1 "with deep regret and a broken heart."...
Jane Orie is serving a 21/2- to 10-year prison term for using her staff for her own and Ms. Orie Melvin's campaigns and for forging documents to cover it up. She was found guilty in March 2012 of 14 of 24 counts against her, including ethics violations, theft of services, tampering with evidence and forgery.
Assistant district attorney Lawrence Claus is seeking consecutive sentences of incarceration in the aggravated range for Ms. Orie Melvin. The standard range is probation to 30 months, versus 48 months in the aggravated range. For Janine Orie, the standard range is probation to 27 months and up to 45 months in the aggravated range.
UPDATE: I am very pleased to see from this local article, headlined "Orie Melvin must write apology letters to Pennsylvania judges on photos of herself," that the sentence for the former judge includes a serious shaming sanction. Here are the awesome basics, about which I will blog more in a future post:
Disgraced former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced today to house arrest followed by probation and ordered to send handwritten apologies on photographs of herself to every judge in the Commonwealth.
Allegheny County Court of Common Pleas Judge Lester Nauhaus sentenced Orie Melvin to three years' house arrest with two years' probation to follow.
A jury found Orie Melvin and her sister Janine Orie guilty on Feb. 21 of using judicial staff, as well as the staffers of another sister, former state Sen. Jane Orie, to work on the campaigns in 2003 and 2009 for the Pennsylvania high court.
Orie Melvin, 56, was found guilty on six of seven counts against her, including conspiracy, theft of services and misapplication of government funds. She resigned from the Supreme Court in March.
She must serve in a soup kitchen three times a week and can otherwise only leave her house for church.
Judge Nauhaus also ordered that an official county photographer take a photograph of Orie Melvin, on copies of which she must apologize to each of Pennsylvania's judges. She must pay for the cost. He ordered a deputy to handcuff her and the photo was taken of her in handcuffs.
Her sentence also includes $55,000 in fines, a prohibition on using the title "justice" during her term and handwriting apologies to former members of her campaign staff and that of her sister, former state Sen. Jane Orie, whom she made engage in illegal work.
May 7, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Monday, May 6, 2013
Don't registered sex offenders need gun rights for personal self-defense more than others?The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits." Here are excerpts from the lengthy Des Moines Register story, which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:
Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.
It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers. An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....
Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety. But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.
The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun. Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.
But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public. Two of those men had their permits revoked by sheriffs after the Register asked about their situations....
Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue. But other professionals in Iowa’s law enforcement community were caught off guard.
Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register. He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....
[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued. Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.
Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens. Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida. She is frequently recognized as a national expert on sexual violence....
National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State. Iowa numbers mirror the national trend. Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....
The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety. “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.
Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers. Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....
An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others. Those types of denials typically must be based on documented actions from the past two years. Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal. Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....
The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.
Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure. Dunbar said he approved the permit because Hahn passed background checks. Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting. “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.
Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders. People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.
Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)
More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.
Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald. If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?
May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (88) | TrackBack (0)
New bipartisan House Judiciary Committee task force to examine overcriminalizationAs reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice. The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:
Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.
The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.
Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.
Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.
In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.
The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb. Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.
Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates. For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....
Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.
As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system. Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.
California Supreme Court decides localities can ban storefront marijuana shopsAs reported in this new AP article, "local governments in California's have legal authority to ban storefront pot shops within their borders, California's highest court ruled on Monday in an opinion likely to further diminish the state's once-robust medical marijuana industry." Here is more about the ruling and the context via the AP:
Nearly 17 years after voters in the state legalized medical marijuana, the court ruled unanimously in a legal challenge to a ban the city of Riverside enacted in 2010.
The advocacy group Americans for Safe Access estimates that another 200 jurisdictions statewide have similar prohibitions on retail pot sales. Many were enacted after the number of retail medical marijuana outlets boomed in Southern California after a 2009 memo from the U.S. Justice Department said prosecuting pot sales would be a low priority.
However, the rush to outlaw pot shops has slowed in the 21 months since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.
Marijuana advocates have argued that allowing local government to bar dispensaries thwarts the intent of the state's medical marijuana law - the nation's first - to make the drug accessible to residents with doctor's recommendations to use it.
The ruling came in the case filed after Riverside city lawmakers used zoning powers to declare storefront pot shops as public nuisances and ban the operations in 2010. The Inland Empire Patient's Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down. A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.
The 38-page majority opinion from the California Supreme Court, as well as a three-page concurrence by Justice Liu, can be found at this link.
Should the top 1% get sentenced extra tough for defrauding Social Security?The question in the title of this post is prompted by this notable report of an interesting federal sentencing proceeding taking place today in Minnesota. Here are the basics:
A North Oaks couple will be sentenced Monday for defrauding the Social Security Administration of more than $300,000 in medical assistance despite a family net worth of $11 million. James and Cynthia Hood pleaded guilty in October to falsely claiming $332,000 in medical assistance payments for their seriously disabled children over five years.
Prosecutors are recommending a 41- to 50-month sentence for James Hood, but no prison time for Cynthia Hood ecause of the critical role she plays in caring for her two disabled children. One is autistic and the other has spastic quadriplegic cerebral palsy.
U.S. District Judge Joan Ericksen is expected to sentence the couple in a hearing beginning at 11 a.m. at the federal courthouse in Minneapolis.
The U.S. attorney’s office stated it “does not object to a non-incarcerative sentence for Cynthia Marsalis Hood, which includes home confinement, community service and a fine.” She should normally receive a prison sentence of 27 to 33 months for her conduct, federal prosecutors said in a memorandum last month.
The Hoods’ three children are 15-year-old triplets. Two of them are described by the prosecutors as “severely disabled.” Cynthia Hood sleeps next to one child “on a nightly basis” to keep her airways clear, in addition to helping “with all toileting and bathing needs.”...
The prosecution’s recommendation for a lighter sentence cites specific paragraphs from federal guidelines that indicate Cynthia Hood may have cooperated with the federal investigation. When they pleaded guilty in October, she and her husband paid the U.S. Marshals Service $484,312 as part of the plea agreement....
James Hood is a retired professor at Tulane University in New Orleans. Following Hurricane Katrina in 2005, the couple “decided to relocate to Minnesota to take advantage of the health care and educational resources available for their children,” the court documents state.
Social Security Income (SSI) benefits for a child require that a parent and child have no more than $2,000 in income and assets, excluding a house and vehicle. “SSI is meant to be a resource of last resort,” prosecutors wrote. However, in a benefits interview in February of 2006, Cynthia Hood lied, claiming her husband lived in Louisiana and she was the sole legal guardian of her children, authorities said. She also lied about her assets and said she only had $1,400 in the bank, they said.
She failed to disclose that she and her husband owned a house in Louisiana that they had listed for sale at $278,000, that she held at least 16 bank accounts while he had 68 bank accounts, and that their combined interest income in 2006 was $183,000, prosecutors said. Her husband also owned a farm in Batavia, Iowa, that consisted of 180 acres of timber and farmland where corn and soybeans grew, with an income in 2005 of $187,910 that included $19,000 in state and federal agricultural payments.
The documents state that Cynthia Hood was purportedly unaware that for three years, they also received Medicaid payments from Louisiana for their children, thereby defrauding both Minnesota and Louisiana at the same time. The medical payments Hood received in Minnesota included more than $20,000 per year in salary to serve as a personal attendant for her children and $30,000 for a wheelchair-accessible elevator installed in the Hoods’ North Oaks home.
I would like to see the proverbial "book" thrown at these white-collar scoundrals, but I do not see the value or need for that book to include costly federal incarceration for either of these defendants.
In my view, it would be far more fitting to require James Hood to do 3+ years of community service rather than spend time (and taxpayer money) getting three squares and a cot in some low-level federal prison facility. I think Mr. Hood could and should be ordered as part of probation to helping truly poor people secure the Medicaid funding they deserve or ordered to spend time back in New Orleans helping truly needy folks still struggling with post-Katrina challenges.
UPDATE: This follow-up press report reports on the the sentencing outcomes for the Hoods, which appear to track the recommendations made by prosecutors:
A wealthy North Oaks woman will serve no prison time for defrauding Medical Assistance of $332,000. On Monday, U.S. District Judge Joan Ericksen sentenced her to probation instead, saying her two severely disabled children “are very, very dependent on you.”
Ericksen ordered Cynthia Hood, 55, to pay a $300,000 fine, but said she was entitled to the lighter sentence because she was not the fraud’s ringleader, cooperated with authorities in investigating her husband, and was essential to caring for the children.
Her husband, James Hood, 69, was sentenced to 3½ years in prison and must pay a $200,000 fine. Erickson called his actions “despicable.”
May 6, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack (0)
"Plea Bargains that Waive Claims of Ineffective Assistance -- Waiving Padilla and Frye"The title of this post is the headline of this notable and timely new article by Nancy King now available via SSRN. Here is the abstract:
This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.
I am looking forward to finding time to read this article, in part because I have seen a number of federal plea agreements than include express waivers of the right to effective representation during plea bargaining. I have not given much thought to the constitutional status of these plea terms, but I have long thought it ethically questionable for prosecutors to demand such terms in plea agreements and for defense attorney's to urge defendants to accept such a waiver without also advising the defendant to consider seeking outside advice as to whether he can and should accept such a term in any proposed plea deals.
This view is informed by professional conduct rules (such as this one) which often require a lawyer to recommend a client seek another independent lawyer's advice before waiving potential malpractice claims. Waiving a viable IAC claim seems comparable to waiving a malpractice claim; I think similar professional rules ought to apply to lawyers in this kind of setting, especially since it is the client's liberty and future, rather than just his money, at stake in any dealmaking in any serious criminal cases.
You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?After a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey. This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:
Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.
The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007. She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.
She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000. "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.
In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing. She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.
Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.
A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday. She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline. "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.
Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.
Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh? expensive?) alternative to imprisonment sentence.For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.
Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system.
UPDATE: This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill. I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.
Sunday, May 5, 2013
Notable new Judge Weinstein opinion on child porn sentencing for juve offenderOver the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here). The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:
D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).
The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here).
Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.” How many judges can say that in any criminal case that is resolved by plea? Far, far too few.
Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected. All concerned are best served by following this course.”
This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).
May 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack (0)
"Retroactivity and Crack Sentencing Reform"The title of this post is the title of this new paper by Harold Krent now available via SSRN. Here is the abstract:
This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.
Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court inordinately relied on the general savings statute enacted in 1871. Congress enacted that statute not to prevent retroactive decriminalization or diminution in punishment, but to avoid the consequence of abatement of pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to avoid the bizarre consequence of offenders walking free merely because Congress recodified a law or even increased the punishment for an offense without specifying that prosecutions could continue under the former enactment. In today’s world, the savings statute should be understood more as a default in the face of congressional silence – once it is clear that Congress considered the temporal scope of its action, the presumption disappears.
I next consider whether alternative justifications support a strong presumption for prospective application of any legislative change. I initially turn to the well entrenched norm against retroactive lawmaking. I reject the premise that the conventional reasons against retroactive measures have salience in the context of legislative amelioration of punishment. I then assess two separation of powers concerns that might justify a clear statement rule against retroactive application of congressional leniency. First, I ask whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency.
On the other hand, I reject the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders at times seems grossly unfair, and Congress from a deterrence perspective lacks any justifiable reason to treat similarly situated offenders so disparately. Nonetheless, I argue that Congress under a retribution rationale can justify the differential punishment scheme and survive equal protection scrutiny.
In short, because there are no compelling policy or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses prior to the decriminalization or diminution in punishment. The Court’s decision in Dorsey should have been straightforward – given the directive in the sentencing act to rectify the disparity in sentencing between crack and powdered cocaine offenses as quickly as possible, Congress intended the shortened sentences to apply to all pending cases.