Thursday, June 05, 2014

"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is the abstract:

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause.  Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual.  It therefore may not be long before the courts, including the Supreme Court, must finally address the issue.  When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment.  The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

June 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, June 04, 2014

Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP

The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here).  As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:  

Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last.  Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge.  To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment.  Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.

We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed.  But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment.  Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands.  And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....

We acknowledge that our result may seem harsh.  Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence.  But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.

At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway.  On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.

A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.

While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.

Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:

Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....

Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge.  The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence.  Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal.  In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison.  This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.

In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal.  That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]

From this result, a pyrrhic victory if there ever was one, I respectfully dissent.

[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken.  The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish[] he had left well enough alone."  I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process.  If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.

I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.

June 4, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Constitutional challenge to California's solitary confinement practices to proceed as class action

As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:

A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....

The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....

In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.

In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

June 4, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

June 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Michigan Supreme Court holds that Gov cannot revoke a valid sentence commutation

Today in Makowski v Governor, No. 146867 (Mich. June 3, 2014) (available here), the Michigan Supreme Court declared unanimously that "the Michigan Constitution does not grant the Governor the power to revoke a valid commutation."  Here is an excerpt from the start of the syllabus to the decision which provides context for and summarizes the context of the ruling:

Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions.  The Governor had signed the commutation on December 22, 2010, after which it was signed by the Secretary of State and affixed with the Great Seal; however, four days later, the Governor decided to revoke the commutation order, and all copies of the commutation certificate were destroyed.  Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued that the Governor lacked the authority to revoke a completed commutation.  The court, Richard D. Ball, J., granted defendants’ motion for summary disposition, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions.  Plaintiff appealed.  The Court of Appeals, O’CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ., affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question.  299 Mich App 166 (2012).  The Supreme Court granted plaintiff’s application for leave to appeal. 494 Mich 876 (2013).

In an opinion by Justice CAVANAGH, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, AND VIVIANO, the Supreme Court held:

The interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 were justiciable questions properly before this Court.  The Constitution did not give the Governor the power to revoke a validly granted commutation.  A commutation is complete when it is signed by the Governor and the Secretary of State and affixed with the Great Seal. Because the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.

June 3, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, June 02, 2014

Tenth Circuit explains what's the matter with Kansas prior convictions as enhancers

Download (1)Thanks to a helpful reader, I learned that today the Tenth Circuit handed down a significant opinion concerning the use of prior Kansas offenses in career offender guideline calculations in US v. Brooks, No. 13-3166 (10th Cir. June 2, 2014) (available here).  Here is how the opinion in Books starts and ends:

Did Defendant Damian L. Brooks commit enough prior qualifying felonies to be considered a “career offender” under the Federal Sentencing Guidelines?  The district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because it was punishable by more than one year in prison. On appeal, Defendant admits Hill mandates this classification. He argues, however, that Hill was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).  We agree.  As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing....

In conclusion, Hill — which looked to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison — cannot stand in light of Carachuri-Rosendo.  We now hold, in line with our pre-Hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.  As such, Defendant’s prior Kansas conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a).  The district court’s imposition of a career offender enhancement was therefore in error and is REVERSED. This case is REMANDED for resentencing.

The helpful reader who alerted me to this opinion noted that "for those of us who deal with Kansas state convictions, it is (as Ron Burgundy would say), kind of a big deal."  Here is part of this reader's explanation for why:

Previous 10th Circuit authority held that a conviction for a Kansas on grid "felony" was punishable by more than one year if a sentence more than one year could be imposed on any hypothetical defendant.  That is, the analysis was not limited by a defendant's actual criminal history category on the state guidelines grid.  If more than one year could be imposed for any criminal history category, the conviction = felony for purposes of federal law, even though a particular defendant may have only been exposed to a sentence less one year or less....

This ruling will impact multiple areas of federal prosecution and sentencing.  For instance, if the high end of a defendant's KS gridbox is 12 months, then the conviction is not a disabling conviction for purposes of 18 USC 922(g)(1).  Likewise, such a conviction would not be a predicate conviction for purposes of the Armed Career Criminal Act or the Career Offender guidelines enhancement.

A more limited effect will be that a few drug-grid convictions will not be a "prior drug felony" that can enhance a controlled substance offense under 21 USC 851....  Certain attempts/conspiracies/solicitations to commit drug crimes would also not be a federal felony for enhancement purposes.

Because I do not know how many federal sentencing cases are significantly impacted by how certain prior Kansas offenses are assessed, I cannot readily guess just how loudly this Brooks ruling might echo in other settings.  But I do know that a similar type of ruling from the Fourth Circuit a few years ago concerning how North Carolina priors were to be treated has tied up a lot of federal courts in a lot of jurisprudential knots as they try to unwind the impact of "mis-assessed prior offenses." Consequently, I would advise court officials and federal practitioners in Kansas and perhaps throughout the Tenth Circuit to start reviewing and giving thought to what Brooks says and what it could mean for prior cases as well as future ones.

June 2, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

House votes to preclude funding for clemency efforts as well as for pot prosecutions

I was amazed and pleased upon learning that a majority of members of the US House of Representative voted for an appropriations measure that would preclude the Justice Department from using funds to prevent states from implementing their medical marijuana laws (basics here and here).  But I was also amazed and peturbed upon learning that a majority of members of the US House of Representative also voted for an appropriations measure that would preclude the Justice Department from using funds to have more DOJ attorneys screen clemency petitions in conjunction with efforts to bring old excessive sentences in line with current laws and norms. This MSNBC article, headlined "House Republicans vote to block Obama’s new pardon attorneys," explains:

The U.S. House voted Thursday to block the Obama administration’s plan to add staff to the Pardon Attorney’s office, a potential barrier to the Justice Department’s efforts to scale back some lengthy prison sentences handed down in the war on drugs. The measure, sponsored by Republican North Carolina Rep. George Holding, bans any funding for staff who would conduct the administration’s planned review of applications from inmates seeking early release.

The measure is attached to a new Justice Department funding bill that passed on a party-line vote of 219-189. A Justice Department official told msnbc that Attorney General Eric Holder considers the new funding restriction “absurd.”

The department in April launched a new effort to review more clemency applications and expand the criteria for releasing inmates, particularly those still imprisoned under harsh sentencing laws that have since been reformed. Holding said he pushed the funding ban because he believes Obama is intent on using his presidential pardon power “solely on behalf of drug offenders.”

Speaking on the House floor, Holding also accused the administration of bulking up the Pardon Attorney’s office as a “political ploy” in order to “bypass Congress” and drug laws that are still on the books.

House Democrats objected, saying the funding ban would hamper the research and expertise of the Pardon Office. “If there were a resignation in the office and if you needed to have a temporary detailee, it would be prohibited from this amendment,” Pennsylvania Democratic Rep. Chakah Fattah said. “The last thing we would want is the President using such extraordinary power without the benefit of proper staff and due diligence,” he added.

Virginia Republican Rep. Bob Goodlatte, the House Judiciary Committee chairman, said that while “no one denies the constitutional power of the president to grant clemency,” the Justice Department’s encouragement of “thousands” of clemency appeals is an improper use of the clemency power.  “Congress should not fund that office for that purpose,” Goodlatte said.

To date, President Obama has granted ten clemency petitions out of 11,218 clemency petitions received.

I am inclined to use the word asinine rather than absurd to describe this funding restriction and vote. Congress ought to pass a resolution if it is eager to provide advice or express concerns about how Prez Obama (or any other president for that matter) may be planning to use the constitutional clemency authority. But to prevent DOJ from having adequate resources to better screen the huge number of petitions coming from a huge number of federal prisoners serving now reformed sentences seems more likely to encourage misuse rather than better use of the clemency power.  Sigh.

June 2, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, June 01, 2014

"Death penalty in Kansas: Will the state ever execute another prisoner?"

The title of this post is the headline of this lengthy article in the Lawrence Journal World. And though focused on the modern story of capital administration in the Sunflower State, there are likely at least a dozen other states which still have the death penalty on the books and a number of prisoners on death row (ranging from California to Pennsylvania, from North Carolina to Washington) for which the same question could be reasonably asked given the lack of execution in these states for more than half a decade.  Here are excerpts abut the modern capital story in Kansas that is similar (though with distinct facets) to what happen in a number of states :  

Moments before he was hung to death, George York expressed contrition for his sins....

The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York's neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.

York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma.  But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.

There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state's relatively low murder rate. Nine men are currently on death row in Kansas.

Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn't even have lethal injection drugs in stock because a possible execution is so far in the future....

Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases.  The legislation didn't pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years. "Four words: the Kansas Supreme Court," he said.  "It's not that we don't use the death penalty in Kansas.  It's that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out."

Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases.  "What we tend to forget is the people who do this had zero mercy for the people they killed," he said. "The people who are murdered go through hell.  After they're murdered, we forget about the victim. People say, let's not be inhumane, but what about the people they killed?" He said the drawn-out appeals process puts families of victims "right back into that emotional mess they were in when they loved ones were killed."

The state's top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants' ability to file successive, unnecessary motions clogs up the appellate system. "Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty," said his spokesman, Clint Baes.  "In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules.  A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals."

The state Supreme Court not only declared Kansas' death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on....

Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years....

Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect.  The state's murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.

He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas' death penalty statute, the appeals process will likely quicken.  "Unless the Legislature repeals the death penalty, I think there will eventually be an execution," he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). "The more cases you have, the better the judges get at figuring out how to do these things.  They're still going to take a lot of time, but it's not going to increase. It's almost assured that we will have an execution as long as the statute is in place."

That execution, if it comes, probably won't be happening in the near future. Even if the Kansas' high court affirms a death sentence, it will then have make its way through the federal appeals system.  "The death penalty is by far the most complex set of laws there could be in criminal law," said Ron Wurtz, the former chief of the state's Death Penalty Defense Unit, who doesn't see a Kansas inmate being put to death anytime soon. "It's not even close right now. I'd say it's probably 10 more years out, at the very least."

June 1, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Could video kill the sentencing brief?

220px-Video_Killed_the_Radio_Star_single_coverThe question in the title of this post is prompted by this notable Wall Street Journal article headlined "Leniency Videos Make a Showing at Criminal Sentencings: Some Lawyers Supplement Letters of Support With Mini-Documentaries; Effectiveness Is Debated." Here are excerpts:

Randy Ray Rivera, formerly of Springfield, Mass., and now a resident of the Metropolitan Detention Center in Brooklyn, is the subject of a documentary film that was made for a very limited audience: the federal district judge who held Mr. Rivera's fate in his hands.

It tells the story of a young man who began dealing drugs as a teenager to support his siblings and his heroin-addict mother, who died of AIDS in 2004. The 26-minute video includes emotional interviews with Mr. Rivera's brothers and sisters, daughters and son, current and ex-girlfriends and a social worker, as well as with Mr. Rivera himself, in white-and-gray prison garb.

Such films, while rare, have caught on in some federal public defenders' offices. Now, some private lawyers and investigators are attempting to unlock the potential of video in the sentencing phase of criminal cases, supplementing the memorandum and letters of support that are typically used to plead for leniency.

"The sentences are almost always better than they would otherwise be," said Doug Passon, a veteran assistant federal public defender in Arizona who is considered by his peers to be a pioneer of so-called sentencing-mitigation videos. For the past five years, he has held a sentencing film festival at an annual training conference for federal public defenders....

Judge William Sessions III, who sits on the federal district court in Vermont, gave Mr. Rivera 12 years in prison, after viewing the video Mr. Rivera's legal team put together. It captures the rundown buildings in Springfield that Mr. Rivera's family occupied, sometimes as squatters. At one point, Mr. Rivera's teenage daughter, through tears, calls him "one of the best dads ever."

Judge Sessions, speaking generally about sentencing videos, said, "When you have a video of either a defendant's life or a victim's life, it provides context for that life." But he said videos weren't a substitute for a good legal argument in a sentencing memorandum. "They are supplementary," he said....

Proponents say the videos fall within the scope of a federal rule that allows people convicted of a crime to "speak or present any information to mitigate the sentence" to the courts. But some courts have rejected sentencing videos, after prosecutors protested they weren't given an opportunity to question the witnesses who appeared in the videos, investigators said.

While investigators and lawyers say such videos are used in a small fraction of the tens of thousands of federal cases that end in a criminal sentence each year, the word appears to be slowly spreading. Susan Randall, a former documentary filmmaker who now works as a private investigator in Vermont, said she has created more than 20 sentencing videos for a range of white-collar and drug defendants, including Mr. Rivera....

Katrina Daniel, a former television news reporter who covered crime, started her own production company in 2012 and has made about 10 sentencing videos, charging anywhere from $5,000 to $20,000.Some are simply interviews with the defendants, while others draw on family, friends, co-workers and others. Ms. Daniel said she tries to convey the defendant's remorse and acceptance of responsibility.

Mr. Passon said he got the idea for sentencing videos from an attorney he clerked for in 1995, while he was law student at Washington University in St. Louis. They were representing a man charged with a drug crime whose wife was dying of lupus, and the defendant was her sole caretaker. "We were trying to show how desperately he was needed at home," Mr. Passon said. They went to the client's home with a clunky, tape-fed video camera and recorded the man as he cared for his wife. "It was very, very powerful," said Mr. Passon.

Pop culture fans will know that the title of this post is a bit of an homage to the very first video ever played on MTV and a song which may be my all-time favorite one-hit wonder. And long-time readers will know I cannot resist this excuse for a mini-song parody based on the start of the lyrics to Video Killed the Radio Star:

I heard you sold some drugs back in '92
Bad criminal intent will keep haunting you
Your criminal history points keep coming through

oh-a-oh

You now get credit for singing like a symphony
And will be helped by machine on new technology
And now I understand the post-Booker scene

oh-a-oh

We met your children

oh-a-oh

What will we show them?
Video killed the sentencing brief
Video killed the sentencing brief
Pictures came and eclipse my words,
We can't mitigate down too far

Whoa!

June 1, 2014 in Booker in district courts, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Saturday, May 31, 2014

Looking at some killers benefiting from SCOTUS Eighth Amendment ruling in Hall

As I noted earlier this week when the Supreme Court's handed down its ruling in Hall v. Florida (opinion here, basics here), the Justices' Eighth Amendment decision will be a big deal for the administration of capital punishment in those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways.  Following up these themes, today's New York Times has this lengthy front-page article looking at some of the death row defendants likely to be grateful for the decision.  The piece is headlined "On Death Row With Low I.Q., and New Hope for a Reprieve,"  and here are excerpts: 

For Ted Herring, who has spent 32 years on Florida’s death row for murdering a store clerk, signs of intellectual disability arose early and piled up quickly: He repeated first grade and got D’s and F’s through fourth grade. He read like a fourth grader at 14 and did not know that summer followed spring....

His intellectual disability was even obvious to a Florida judge, who found him “mentally retarded” and took him off death row 18 years after his original sentence. At 19, in 1981, Mr. Herring murdered a Daytona Beach 7-Eleven clerk, robbed the store and walked away with $23.84. But because Mr. Herring’s I.Q. scores were 72 and 74, just over the “bright line” cutoff of 70 used by Florida to determine intellectual aptitude, the Florida Supreme Court returned him to death row.

When the Supreme Court ruled this week that states can no longer rely on a fixed I.Q. score cutoff to decide intellectual competency, it increased the likelihood that Mr. Herring and other death row inmates like him will have a chance to avoid execution. Fewer defendants are also less likely to wind up on death row in the future because their claims of intellectual disabilities will be not be as readily discounted by the courts.

The ruling affects roughly 30 death row inmates. The number is low because the vast majority of states follow modern standards of determining intellectual disabilities, going beyond using a single number to be considered disabled. But in those states that will be affected, death row inmates with low, but not low enough, I.Q. scores that have been previously rejected or never put forward can now seek to have their sentences reconsidered....

In Florida, 15 to 20 inmates — perhaps the largest number in the country — will probably seek to overturn their death sentences because of the decision... “Florida has the third largest death row in the country and was the state that was the leader in doing this — the bright-line cutoff,” said William Henniss III, who said he had two clients who would most likely seek redress. “Expect there to be more cases like this.”

In Kentucky, five of 34 death row inmates are also likely to ask for new hearings based on the decision, said David Barron, an assistant public advocate who handles post-conviction cases.

Some of them, like Thomas Bowling, who was sentenced to death after killing a married couple in 1990, are likely to explore what the new I.Q. range will be in Kentucky, where 70 has been the cutoff. Mr. Bowling, who claimed on appeal that he was intellectually disabled, repeated the ninth grade several times before dropping out. But the appeals court rejected his claim because his most recent scores, the ones they viewed as most reliable, were in the 80s....

In Virginia, Alfredo R. Prieto is likely to seek a hearing based on is low I.Q. scores, which ranged between 70 and 75, said his lawyer, Cary B. Bowen. Those scores, Mr. Bowen said, “kind of fall in line” with the I.Q. range described in the Supreme Court decision as the kind that should not be rejected simply because they do not meet a cutoff. Mr. Prieto, who is from El Salvador and whose lawyers argued that he was scarred by the violence he saw there during the country’s civil war, is on Virginia’s death row for the 1988 murders of two people. He faces the death penalty for a murder in California, as well, and has been linked to others.

Recent posts on Hall:

May 31, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, May 30, 2014

"Photos from a Botched Lethal Injection"

The title of this post is the headline of this notable lengthy new piece by Ben Crair in The New Republic which carried the subheadline "An exclusive look at what happens when an execution goes badly." Here is how the piece starts, including its "preamble":

Warning: This article contains graphic images from the autopsy of an executed prisoner.

On December 13, 2006, the state of Florida botched the lethal injection of Angel Diaz. The execution team pushed IV catheters straight through the veins in both his arms and into the underlying tissue.  As a result, Diaz, who was convicted of murder in 1986, required two full doses of the lethal drugs, and an execution scheduled to take only ten to 15 minutes lasted 34.  It was one of the worst botches since states began using lethal injection in the 1980s, and Jeb Bush, then the governor of Florida, responded with a moratorium on executions.

Other states hardly heeded Diaz’s death at all. Since he died, states have continued to botch lethal injections: A recent study by Austin Sarat at Amherst College estimated that at least 7 percent of all lethal injections have been visibly botched. The most controversial was in Oklahoma this past April, when the state executed a convicted murderer and rapist named Clayton Lockett using a three-drug protocol, like most other death-penalty states. The execution team struggled for 51 minutes to find a vein for IV access, eventually aiming for the femoral vein deep in Lockett’s groin. Something went wrong: Oklahoma first said the vein had “blown,” then “exploded,” and eventually just “collapsed,” all of which would be unusual for the thick femoral vein if an IV had been inserted correctly. Whatever it was, the drugs saturated the surrounding tissue rather than flowing into his bloodstream. The director of corrections called off the execution, at which point the lethal injection became a life-saving operation.  But it was too late for Lockett.  Ten minutes later, and a full hour-and-forty-seven minutes after Lockett entered the death chamber, a doctor pronounced him dead.

Witnesses to the execution say Lockett writhed, clenched his teeth, and mumbled throughout the procedure.  We won’t better understand what happened until Oklahoma releases an autopsy report some time this summer.  But we do know what happened to Angel Diaz, who died under similar conditions.  While the details of his execution have been known since 2006, The New Republic is publishing for the first time photographs of the injuries Diaz sustained from the lethal injection.  I discovered the photographs in the case file of Ian Lightbourne, a Florida death-row inmate whose lawyers submitted them as evidence that lethal injection poses an unconstitutional risk of cruel and unusual punishment.

May 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Thursday, May 29, 2014

"Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases"

The title of this post is the title of this recent article authored by Paul Larkin that a helpful reader altered me. Here is the abstract:

Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases.  In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms.  And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements.

Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review.  This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement.  The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing.  Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies.

This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles.  The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors.  Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution agreement process.

May 29, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Terrific Posnerian disquisition on supervised release challenges and "best practices"

The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:

We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....

In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:

1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.

2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.

3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.

4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.

5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.

May 29, 2014 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, May 28, 2014

"Judge orders temporary moratorium on Ohio executions"

The title of this post is the headline of this notable capital news emerging in my local legal arena.  Here are the basics:

A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.

Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.

As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

May 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 27, 2014

Will Hall have import or impact other then when states seek to execute the possibly disabled?

Hall is a very big deal for the administration of capital punishment (opinion here, basics here), especially for those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways.   Nevertheless, while a big round of new Atkins/Hall litigation is sure to churn in a number of states in the months and years ahead, in the end the fate of probably only a few dozen capital defendants will be significantly impacted by the holding in Hall.

But, of course, the dicta and direction of the Supreme Court's Eighth Amendment work in Hall could be a big deal in lots of other setting if lower courts conclude that the import and impact of this ruling should extend beyond capital cases involving intellectionally challenged defendants.  Here is a sampling of some (mostly new) Eighth Amendment language from the majority opinion in Hall that I could envision having some bite in some other settings:

The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force....

No legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being....

[A]ggregate numbers are not the only considera­tions bearing on a determination of consensus. Consistency of the direction of change is also relevant.... The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evi­dence of consensus that our society does not regard this strict cutoff as proper or humane....

The actions of the States and the precedents of this Court give us essential instruction, but the inquiry must go further. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. That exercise of independent judgment is the Court’s judicial duty....

The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.  The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitu­tion protects.

As these quotes highlight, the majority opinion per Justice Kennedy in Hall makes much of the "Eighth Amendment’s protection of dignity." (For those into counts, the term dignity is used nine times in Justice Kennedy's majority opinion, while the term is not used even once in Justice Alito's dissent.) Needless to say, I can identify a number of non-capital punishments that states and the federal government have been known to experiment with that seem to "deny the basic dignity the Constitu­tion protects" (such as LWOP for non-violent offenders). I am hopeful that not only the Supreme Court but also lower courts continue to be open to arguments that it is not only some capital punishment provisions that can and sometimes do "contravene our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world."

Today's posts on Hall:

May 27, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

Effective Sentencing Project and HRW responses to Senators' letter opposing the Smarter Sentencing Act

SSAI was very pleased to learn from helpful readers that Antonio Ginatta, the US Program Advocacy Director for Human Rights Watch, and Jeremy Haile, federal advocacy officer for The Sentencing Project, have now both authored effective and distinct responses to the May 12th letter sent by Senators Grassley, Sessions, and Cornyn to their Senate colleagues voicing opposition to the Smarter Sentencing Act (reported here).  Haile's response appears here at The Hill under the headline "Last stand for the drug warriors." Here are excerpts:

In a letter to colleagues, Sens. John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) wrote that the legislation “would benefit some of the most serious and dangerous offenders in the federal system.” The xenators raised the specter of a violent crime wave if minimum penalties for nonviolent drug offenses are reduced.

Describing the Smarter Sentencing Act as a sort of “get out of jail free card” for dangerous criminals is highly misleading. The bill would not eliminate a single mandatory minimum, nor would it reduce any maximum penalties. Instead, it would allow judges greater discretion in low-level cases, while preserving long sentences for the most serious offenders....

Unfortunately, some longtime drug warriors seem intent on throwing cold water on the sentencing reform movement just as it is heating up. Michele Leonhart, head of the Drug Enforcement Agency, recently testified that rather than unwinding the drug war, “we should be redoubling our efforts.” A number of former federal law enforcement officials have argued that current drug sentencing penalties should be preserved.

But we have tried incarcerating our way to a drug-free America, and that approach has failed. Three decades later, evidence is mounting that federal drug laws have led to skyrocketing prison populations without making communities safer. Meanwhile, illegal narcotics are as pure and as readily available as ever.

Rather than caving in to the “tough on crime” rhetoric of another era, Congress should seize a rare opportunity for reform. State after state has reduced drug sentencing penalties without jeopardizing public safety. Polls show that Americans, Republican and Democrat, favor treatment over prison for nonviolent offenders.

The old playbook on crime and punishment is worn out. It’s time to take a new approach to nonviolent drug sentencing.

Ginatta's response appears in an open letter available here to Senators Grassley, Sessions, and Cornyn detailing with hard data why so many of their claims are misguided.  I urge ervery to read the HRW reponse in full, and here is an excerpt:

Your letter states that drug-related mandatory minimums “are used almost exclusively for high-level drug traffickers.” Data from the United States Sentencing Commission tells a much different story. According to the Commission, 40 percent of federal drug defendants were couriers or street dealers.  In fact, nine out of ten federal drug defendants come from the lower or middle tiers of the drug business.  Because mandatory minimums are triggered by the quantity of drug involved, a street-level dealer can face the same minimum sentence as the head of a large drug trafficking organization. A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five-year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap)....

You next cite in your letter that “those who would benefit from these reduced sentences are not ‘non-violent’ — they would include repeat drug traffickers and criminals with a history of violence.”  This is only part of the story.  Almost half (49.6 percent) of all federal drug offenders imprisoned in Fiscal Year 2013 fell under the lowest criminal history category (zero or one criminal history point under the federal sentencing guidelines).  And 83.8 percent of federal drug offenders during the same period were found to not have a weapon involved in their crime.  A small percentage of drug offenders may have used a weapon in their offense, but the mandatory minimums you defend are wilfully blind to the vast numbers of those who didn’t.  To brand all drug offenders as violent is too broad a sweep — no sane sentencing policy should make that assumption.

Some prior posts about the SSA and debates over federal sentencing reform:

May 27, 2014 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

"Intellectual disability is a condition, not a number. See DSM–5, at 37."

The title of this post is the sentence and cite that perhaps best summarized the work of the majority of the Supreme Court this morning in Hall v. Florida (opinion here, basics here).  In Hall, the Court rejects as violative of the Eighth Amendment Florida's use of a bright-line IQ test cut-off set at 70 for defining who is eligible for execution (while dodging whether a cut off set at 75 would be okay) based principally on the medical community's consensus view that IQ tests are just one factor in assessing intellectual disability and are necessarily imprecise.  Here are just a few excerpts from the majority opinion in Hall that highlight these themes:

That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising.  Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities.  Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue....

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.  It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise....

It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.  Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession....

This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowl­edged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disa­bility, including testimony regarding adaptive deficits.

Not surprisingly, the dissent in Hall recognizes and criticizes the majority's heavy reliance on the medical community's approach to determining intellectual disability.  Here is a snippet of this criticism from the dissent:

Under our modern Eighth Amendment cases, what counts are our society’s standards — which is to say, the standards of the American people — not the standards of professional associations, which at best represent the views of a small professional elite....

The Court’s reliance on the views of professional associ­ations will also lead to serious practical problems.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA

20140525mortgage-fraud-thumbI am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus.  As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.

Here, from the start of the first article in the series, are the basic findings of this terrific project:

In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.

Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.

That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.

A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system.  Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.

• Leniency for cooperation was doled out liberally.  At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation.  That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.

• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months.  By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison.  Those few who went to trial faced an average of 6½ years behind bars.

•  Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences.  For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house.  Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.

Here are links to all the article in the series:

Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.

May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach

Clearly the Justices decided to celebrate the Memorial Day week by reminding everyone that the Bill of Rights has a lot of provisions concerning the administration of our criminal justice systems.  Returning from the long weekend, the Supreme Court handed down five opinions this morning (four in argued cases, one per curiam), and all but one of the rulings has a criminal justice element.  The big one for sentencing fans is the 5-4 Eighth Amendment ruling in Hall v. Florida, No. 12–10882 (S. Ct. May 27, 2014) (available here), which gets started this way: 

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S. 304, 321 (2002).  Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is fore­ closed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

The other criminal justice rulings in argued cases today concern police use of force and immunity, and the per curiam concerns when jeopardy attaches for the application of the Double Jeopardy clause. How Appealing has its always terrific review of all the essentials (with links) assembled here, and SCOTUSblog is sure to have a lot on all this action in coming posts.

Once I have a chance to read the Hall decision in full, I am sure I will have one or more substantive posts about the decision later today.

May 27, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

Cross-posted at Marijuana Law, Policy and Reform

May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack