Sunday, September 21, 2014

"Under Pressure: The Hazards of Maintaining Innocence after Conviction"

The title of this post is the title of this intriguing new piece authored by Daniel Medwed and now available via SSRN. Here is the abstract:

Innocent people convicted of child abuse or sexual offenses face a classic “Catch-22” situation that has ramifications on their prospects for parole and for exoneration in court. If prisoners continue to maintain their innocence while imprisoned, then corrections officials may interpret this behaviour as demonstrating a key trait of sex offenders — “denial” — and make them ineligible for treatment programs that are a prerequisite for parole in many jurisdictions. Even if they are technically eligible to apply for parole, inmates who claim innocence before parole boards harm their chances for release based on the belief that those unable to admit guilt are likely to re-offend; they are perceived as lacking in remorse and failing to address their offending behaviour.

Prisoners who pursue their innocence through post-conviction litigation also face an uphill climb. This is attributable in part to cognitive biases that affect how prosecutors treat innocence claims in the aftermath of conviction and all too often lead them to discount their potential legitimacy. Considering the hazards that inmates encounter in maintaining their innocence in parole and post-conviction litigation settings, there is reason to think that many of them are not in denial, but rather the victims of profound miscarriages of justice. This Book Chapter will explore this conundrum in these two settings before concluding with some thoughts on reform.

September 21, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Friday, September 19, 2014

"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"

The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:

This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis.  Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis.  One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.”  The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.

It is difficult, however, to evaluate these competing claims without proper context.  This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context.  Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis.  This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions.  And it ultimately highlights the merits, and shortfalls, of each camp’s arguments.  The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.

September 19, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 18, 2014

Long-incarcerated mass murderer given right to end his life in Belgium

A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:

A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged.  Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges.  Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.

Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’

It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down.  It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.

In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die.  Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.

Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised.  Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.

Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it.  Just locking them up helps no one — neither the individual, society or the victims.  ‘I am a human being, and regardless of what I’ve done, I remain a human being.  So, yes, give me euthanasia.’

Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws.  It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland.  Last year alone, Belgium euthanised a record 1,807 people.

Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral.  A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.

Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:

Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.

The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.

Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.

The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”

September 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, September 17, 2014

Seventh Circuit panel seemingly unmoved by feds appeal of probation sentence given to Beanie Babies billionaire

As detailed in this new Chicago Tribune article, "Prosecutors in Warner tax evasion case grilled by appeals court judges," federal prosecutors apparently did not get a warm reception at oral argument in the Seventh Circuit as they pressed their claims that a probation sentence given to a high-profile tax cheat was unreasonable. Here are the basics:

Federal prosecutors appealing the probation sentence of Beanie Babies founder Ty Warner faced a three-judge panel Wednesday to make the case for why the Westmont billionaire should get prison time for evading taxes.

Warner pleaded guilty last year to one count of tax evasion for failing to report more than $24 million in income and skirting $5.5 million in federal taxes on millions of dollars he hid for more than a decade at two Swiss banks.  Prosecutors had been pushing for a sentence of at least one year in prison, partly to deter others from committing the same crime. Sentencing guidelines had called for a prison sentence of up to 57 months.  His defense lawyers had argued that many tax evaders were allowed to join an amnesty program and that, even among those criminally charged and convicted, more than half who had been sentenced received probation.

Ilana Rovner, a U.S. appeals court judge for the seventh circuit, said Wednesday that she had a problem reconciling why the government was seeking to throw out Warner’s sentence when many tax evaders get probation or might not be prosecuted at all.  Also, the amount of tax he evaded was a fraction of what he has paid in taxes, she noted. Warner has already paid a civil penalty for not reporting the offshore accounts and restitution for what he owed in back taxes and interest....

Rovner also noted that prosecutors seem to be ignoring the “considerable discretion” of the district judge, Charles Kocoras, has in imposing a sentence.  He is a “veteran” judge who “obviously agonized” over the decision, she said.

Judge Michael Kanne noted that Warner’s guilty plea “saved the government some money” and that the appeals court “shouldn’t be the sentencing court.”

Judge Joel Flaum wondered why, if Warner’s conduct was so egregious, he was charged with only one count of tax evasion and why the government was seeking at minimum at least a year in prison.  Rovner chimed in, addressing Petersen: “You agreed to this.”

Judge Kanne noted that one count of tax evasion and a minimum prison sentence of a year “doesn’t sound like deterrence to me.”  Petersen responded that probation is a far more lenient sentence than the minimum of one year the government was seeking.

Anyone eager to hear the oral argument in full can access it via this mp3 link from the Seventh Circuit's website.  Notably, former US Solicitor General Paul Clement argued on behalf of the defendant (and I cannot help but wonder if he got some special Beanie Babies from the defendant in addition to the usual fees for his efforts).

Prior related posts:

September 17, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Sentencing and Interbranch Dialogue"

The title of this post is the title of this intriguing new paper by Eric Fish now available on SSRN. Here is the abstract:

American legislatures generally delegate primary control over sentencing policy to one of two actors — trial judges or a sentencing commission.  In choosing between these actors, a legislature decides between two values, individualization or uniformity.  If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices.  If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant.  This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity.  In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines.  They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.

Such dialogue has different institutional forms in different guidelines regimes.  In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves.  In an advisory guidelines regime (where the guidelines are non-binding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.

The benefits of a dialogic sentencing system are twofold.  First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates.  Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions.  Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.

September 17, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, September 15, 2014

"Unbundling Criminal Trial Rights"

The title of this post is the title of this intriguing short paper by John Rappaport that I just saw on SSRN. Here is the abstract:

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong.  Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure.

This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.”  The parties could then tailor court procedures by agreement.  Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury.  Or the parties could agree to submit a case to private arbitration.  Would such a world be better or worse than the one we have now?  This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

September 15, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 14, 2014

Claiming his innocence, convicted Florida murderer requests judge to impose death penalty

I have often told my sentencing classes that, if I was unlucky enough to be wrongly convicted of capital murder, I would likely request to be sentenced to death in the hope of bringing more attention to my case and cause.  This local story from Florida, headlined "Defendant Dares Judge to Give Death Penalty," suggests that at least on Florida defendant has a similar philosophy. Here are the details:

A South Florida man convicted of murdering two people during a string of Dunkin’ Donuts robberies in 2008, dared a judge Friday to sentence him to death.  “Honestly and truly, I’m not asking you to spare me,” James Herard said in Broward County courtroom on Friday. “Go ahead and do what you gonna do.  I pretty much dare you to give me the death sentence because I’m innocent.”

Herard, 25, was convicted on 18 of 19 counts by the Fort Lauderdale jury in May. The same jury that convicted him has recommended the death penalty for Herard. Herard did not testify during the trial, so Friday was his last chance to speak in court before the judge hands down his sentence.

“I’m actually hoping you give me the death penalty because I know the Supreme Court won’t allow me to die for something I didn’t commit,” Herard said Friday.

Prosecutors say Herard didn’t pull the trigger in the 2008 murder of 39-year-old Eric Jean-Pierre. But, they say he, along with other members of a gang, were part of a “body count competition” and Herard pushed Tharod Bell to murder Jean-Pierre.

“They’re claiming I encouraged Tharod Bell to shoot someone, and how I did that, I don’t know,” Herard told the court....

Herard was previously convicted of the murder of 58-year-old Kiem Huynh in 2008.  He received sentences of life imprisonment for Huynh’s death.

September 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 11, 2014

Symposium papers on "NSA Surveillance: Security, Privacy, and Civil Liberty"

Though not focused on core sentencing issues, a new set of symposium papers published in a great law journal at Ohio State may be of interest to many blog.  The Summer 2014 issue of I/S: A Journal of Law and Policy for the Information Society is the result of a symposium on “NSA Surveillance: Security, Privacy, and Civil Liberty.”  Here is a listing of the impressive group of papers that are all available at this link:

September 11, 2014 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 09, 2014

Split Third Circuit panel concludes Allenye error can be harmless

Sixth Amendment fans will want to find the time to check out the Third Circuit's notable opinion today in US v. Lewis, No. 10-2931 (3d Cir. Sept. 9, 2014) (available here).   The start of the majority opinion (per Judge Fisher) in Lewis suggest there is not too much of note in the case: 

This case requires us to determine the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt. Such errors occur when a sentence is imposed in violation of the rule recently set forth in Alleyne v. United States, 133 S. Ct. 2151 (2013). Appellant Jermel Lewis challenges his sentence and contends that the failure of the indictment to charge an Alleyne element, combined with Alleyne error in jury instructions and at sentencing, is structural error.  We hold that Alleyne error of the sort alleged here is not structural and is instead subject to harmless or plain error analysis under Federal Rule of Criminal Procedure 52.  We conclude that the District Court’s error in Lewis’s case was harmless and will therefore affirm.

But the end of of the dissenting opinion (per Judge Rendell) in Lewis suggests there is a lot more to the matter:

Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.”  271 F.3d at 130 (Rendell, J. dissenting).  Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review.  Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient.  In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.

But perhaps I am wrong.  Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly.  Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings.  But I take the Supreme Court at its word.  Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits.  I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.

September 9, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, September 08, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, September 05, 2014

"Reducing Guilty Pleas Through Exoneree Compensations"

The title of this post is the title of this intriguing new article available via SSRN authored by Murat Mungan and Jonathan Klick.  Here is the abstract:

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed.  In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals' plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas.  Any distortions in guilty individuals' incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty.  Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations.  We argue that such reforms are likely to achieve this result without causing deterrence losses.

September 5, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 04, 2014

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

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

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

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

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

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

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

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

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

September 4, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12) | TrackBack

"Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining"

The title of this post is the title of this notable paper I just saw on SSRN authored by Peter Joy and Rodney Uphoff.  Here is the abstract:

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process.  At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye.  Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved.

Waivers of ineffective assistance of counsel claims pose both legal and ethical issues. Legally, the waivers serve to undermine a defendant’s due process rights — recognized by the Court in Gideon v. Wainwright — by requiring the defendant not only to waive what is unknown to them at the time of waiver, but to do so even when based upon bad advice of ineffective counsel.  Ethically, a defense lawyer counseling a defendant to waive ineffective assistance of counsel claims has a personal conflict of interest with the client, because the lawyer has reputational and other interests in not having the lawyer’s representation of the client determined to be ineffective.

Whether the Supreme Court would approve a waiver of an ineffective assistance claim that would negate the due process right to effective assistance of counsel is not yet resolved.  Such a decision, however, would immunize much incompetent lawyering from any judicial scrutiny altogether.

This article begins by examining the systemic barriers defense counsel face to provide meaningful advice to criminal defendants contemplating a guilty plea These barriers include the underfunding of defense services in many jurisdictions and the coerciveness of the plea bargaining process.  Next, the article analyzes the law and ethics of waivers of ineffective assistance of counsel claims and whether such waivers should be permissible.  We contend that such waivers should not be enforceable for both legal and ethical reasons.  Permitting waivers of ineffective assistance of counsel claims not only constitutes judicial acceptance of a prosecutorial veto of the Court’s recent decisions regarding plea bargaining, but also ensures that more defendants never receive the effective assistance of counsel during plea bargaining.

September 4, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Oklahoma releases extensive report concerning problems with Lockett execution

As reported in this lengthy Tulsa World article, headlined "IV errors, lack of training cited in Oklahoma botched execution report," the Oklahoma Department of Public Safety released today this lengthy official report concerning the seemingly ugly execution of Clayton Lockett by the state back in April. Here is a rough summary of the report's findings via the news report:

Despite some problems, the execution drugs did what they were supposed to do, the Department of Public Safety said Thursday morning at a news conference on a report into Clayton Lockett's execution....

Lockett died April 29 at the Oklahoma State Penitentiary 43 minutes after his execution began. Witnesses watched as he writhed, strained and mumbled on the gurney inside the execution chamber....

The stress of two planned executions in one day, a lack of proper equipment and no backup plan hampered Clayton Lockett's execution, according to the DPS report released earlier today.  The report also found that the Department of Corrections lacked a longer needle and other equipment that medical professionals requested to insert the IV.  It also states that officials took no steps to revive Lockett after his execution went awry and the blinds were closed....

Gov. Mary Fallin’s staff began preparing a stay of execution for Lockett, but he died before it could be issued, the report states. “There was conversation inside the chamber about administering life-saving measures to Lockett, including transporting him to the emergency room, but no order was given,” the report states.

A paramedic who assisted in the execution also said he felt “stressed” because two executions had been scheduled on the same day.  “It was apparent the stress level at OSP was raised because two executions had been scheduled on the same day,” the report states....

The report makes 10 recommendations for changes in the state’s execution process, including more training requirements and better communication between executioners and officials in the death chamber.  “The current processes, including the use of color pencils and hand signals, could be used as a contingency if other modern methods fail,” the report states.

Executions should also not be scheduled within seven days of each other due to manpower limitations, the report recommends.  DPS investigators interviewed more than 100 witnesses as part of the investigation, including a Tulsa World reporter who witnessed the execution....

The report states that problems with Lockett’s IV were the main reason the lethal drugs were not properly delivered into his bloodstream.  “This investigation concluded the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs,” the report concludes.

An autopsy cites evidence on Lockett’s body that the execution team had difficulty starting his IV, taking about 45 minutes.  It notes at least 14 needle marks and incisions showing multiple attempts to start an IV in his elbows, groin, neck, jugular and foot.

Needles requested by the physician were not available at the prison, the report states. “The physician requested a longer needle/catheter for the femoral access … but none were readily available.  The physician also asked for an intraosseous infusion needle, but was told the prison did not have those either,” the report states....

The execution was the first in Oklahoma to use midazolam, a sedative that has been linked to several botched executions in other states.  Officials resorted to the drug after running out of pentobarbital, which had been used in previous executions.  “This investigation could not make a determination as to the effectiveness of the drugs at the specified concentration and volume,” the report states.  “They were independently tested and found to be the appropriate potency as prescribed.  The IV failure complicated the ability to determine the effectiveness of the drugs.”...

Despite DOC claims that Lockett had “purposefully dehydrated himself,” an autopsy by the Dallas County Medical Examiner’s Office did not find that Lockett was dehydrated, the report notes.

The paramedic assisting with the execution had participated in nearly every Oklahoma execution, the report states.  It does not explain why DOC documents repeatedly referred to the person as a phlebotomist, an occupation not required to be licensed in Oklahoma.

The physician overseeing the execution had only participated in one execution before Lockett’s, the report states. “This was his second execution with the first being four to five years earlier. The physician understood his duties were to assess Lockett to determine if he was unconscious and ultimately to pronounce his death,” the report states. “He was contacted two days prior to the execution date and asked to fill in for another physician that had a scheduling conflict.”...

Anita Trammell, warden at the Oklahoma State Penitentiary, and Patton told investigators that DOC employees received “inadequate” training before the execution. “Warden Trammell stated the only training she received was on-the-job training and that DOC had no formalized training procedures or processes concerning the duties of each specific position’s responsibility,” the report states.

“The warden and director both indicated DOC had no training protocols or contingency plans on how to proceed with an execution if complications occur during the process.” The report states that DOC lacks training requirements for medical professionals and executioners taking part in executions.  “It was noted there was no formal training process involving the paramedic, the physician or the executioners and their specific roles. They were not involved in any pre-execution training or exercises to ensure they understood the overall process,” it states.

Notably, as the Tulsa World article highlights, this report and its recomendations could surely have some impact on Oklahoma's significant upcoming execution plans:

The state plans to review its protocols before the three executions it has scheduled. The execution of a second inmate, Warner, scheduled to be executed two hours after Lockett was stayed until Nov. 13.

Two additional executions have been scheduled after Warner’s execution.  State officials have not said whether they will have enough time to implement any recommended changes in protocol in time for the next scheduled execution.

Legal challenges to the state’s process could also delay upcoming executions. Claiming the state is experimenting on “captive and unwilling human subjects,” 21 Oklahoma death-row prisoners filed a federal lawsuit in June challenging the state’s execution protocols.

September 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, September 03, 2014

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

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

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

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

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

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

New report that Missouri is using controversial execution drug despite claims to the contrary

A helpful readers altered me to this notable new NPR affilate story headlined "Missouri Swore It Wouldn’t Use A Controversial Execution Drug. It Did."  Here is how the lengthy piece gets started:

In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In Oklahoma, it took 43 minutes until a conscious inmate died of what the state said was a heart attack. In Arizona, it took nearly two hours, with the inmate "gulping like a fish on land."

The three worst botched executions this year had at least one thing in common: The states all used a drug called Midazolam to sedate the inmate, with varying levels of success.

Botched executions in other states led to questions in Missouri, a state as secretive as the others. Top Missouri officials were asked about the state's methods. They defended their own protocol each time, pointing out that Missouri doesn’t use the same drugs as those other states.

But an investigation by St. Louis Public Radio shows that wasn't entirely true. According to documents we obtained, Missouri has used Midazolam in every execution since November of last year. In all nine executions since then, Missouri's execution team has injected the condemned with significant amounts of the sedative.

This is occurring in spite of the fact that Missouri's top corrections officials testified Midazolam would never be used in a Missouri execution.

September 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 02, 2014

"Rethink sentencing and parole to solve aging, costly prison population"

The title of this post is the headline of this new editorial from a local South Carolina paper.  Yet, even though focused on some Palmetto State particulars, many of the points and themes in the editorial have broad applicability in many US jurisdictions.  Here are excerpts:

The term "life in prison" is easy enough to understand when it is handed down as a sentence in a courtroom.  But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.

For many, the sentences are a just and fair punishment.  Often, they are also necessary to keep the public safe.  But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws.

Regardless, any prisoner costs the state and its taxpayers a lot of money.  Prisons should serve to deter would-be criminals and separate society from its most dangerous members. Problems — and extra costs — arise when they must also serve as mental health facilities and nursing homes.

According to a recent report by The State newspaper, the number of South Carolina inmates over the age of 55 has more than doubled over the last 10 years. And that number is expected to increase without reforms to the way the state handles its sentencing and parole laws.

Many aging prisoners were sentenced long before a 2010 legislative reform reduced sentences for some non-violent crimes while strengthening punishments for violent offenders. That bill was so effective that it has reduced the prison population in the state by more than 10 percent overall and slashed the number of incarcerated non-violent offenders in the years since its passage.

South Carolina has also implemented programs, including a "smart probation" system, that have helped cut the rate of recidivism dramatically, as The Post and Courier reported on Sunday.   Even so, the state's cost per inmate continues to rise, and part of that increase is due to the expense of caring for aging prisoners with additional medical needs and accompanying logistical concerns....

The South Carolina Sentencing Reform Commission prepares an annual review of the state corrections system with a particular focus on the impact of the 2010 legislation.  That data show that sentencing reform has, by and large, been a success story. But more work remains.  South Carolina should continue its reform of sentencing laws while focusing on rehabilitation for offenders who pose a minimal threat if given probation rather than prison.

The Legislature should also consider expanding parole options for aging inmates who have served substantial portions of their sentences, have serious chronic medical conditions or are unlikely to pose a threat should they be released under supervision.  Every prisoner who can safely be released on parole represents thousands of dollars of savings for taxpayers....

Any decision must consider both what is cost effective and acceptable for public safety. If some older prisoners who have effectively paid their debt to society can be allowed to re-enter society safely and at a savings to taxpayers, then there is little reason to keep them locked away.

September 2, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Saturday, August 30, 2014

"The criminalisation of American business"

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

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

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

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

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

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

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

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

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

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

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

Friday, August 29, 2014

New Hampshire Supreme Court rules Miller is substantive and retroactive to prior JLWOP cases

Today the New Hampshire Supreme Court in In re Petition of State of New Hampshire, No. 2013-0566 (N.H. Aug. 29, 2014) (available here), declared that the Supreme Court's Eighth Amendment ruling in Miller v. Alabama should be applied retroactively. Here is how the court's ruling begins and ends:

In this Rule 11 petition, see Sup. Ct. R. 11, the State appeals the determination of the Superior Court (Smukler, J.) that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the imposition of mandatory life-without-the-possibility-of-parole sentences on juvenile offenders under the age of eighteen at the time of their crimes, applies retroactively to the respondents (petitioners in the trial court), Robert Dingman, Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review.  We affirm....

We conclude that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review.  Consequently, we find that the respondents are entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.  In light of our decision, we decline to address the respondents’ argument that we should “apply a broader retroactivity doctrine than the federal courts apply.”

August 29, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack