Monday, October 07, 2013
SCOTUS gets back in action ... with a light sentencing docket (for now)
The calendar reports that it is the first monday in October, which means it is time for elite lawyers to throw out the first case to kick off the new Supreme Court season. (Given that a number of the SCOTUS Justices are baseball fans and have had the privilege to throw out first pitches, I think it would be really cool for them to invite a famous ballplayer to come throw out the first case. This SCOTUS Term, of course, it should be Mariano Rivera getting the privilege.)
SCOTUSblog is the place to go to keep up with the start of the new Term, and How Appealing has collected here some of the best SCOTUS preview article. Among the previews, I found especially effective Chris Geidner's coverage here at BuzzFeed under the headline "11 Supreme Court Cases That Could Change The U.S. In The Coming Year." That article not only spotlights the highest profile cases on the SCOTUS docket, but also notes a few potential sleepers already on the docket and issues on which cert seems likely to be granted in the coming months.
Disappointingly, as the title of this post notes, the new SCOTUS term is right now light on cases that should be of interest for sentencing fans. Indeed, as of now, there are not any "classic" sentencing issues before the Justices, and I do not see many such sentencing issues in the cert pipeline for SCOTUS unless a group of Justices want to now take up some long-smoldering post-Booker issues or some more recent post-Graham/Miller matters.
That said, there are still more than a few cases that sentencing fans should be keeping an eye on because they deal with concerns ranging from causation standards for restitution awards (Paroline v. U.S.) and causation standards for triggering a 20-year mandatory minimum term (Burrage v. U.S.) to application of the Sixth Amendment ruling in Lafter v. Cooper (Burt v. Titlow) to various death penalty application matters (Kansas v. Cheever and White v. Woodall).
I am sure this too quick SCOTUS preview post has missed a few issues of interest already on the docket and in the pipeline. Readers are urged to fill up the comments with any and all sentencing or broader criminal justice thoughts on the SCOTUS Term to come.
"Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy"The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:
The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have.
The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques.
Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.
Sunday, October 06, 2013
"Should Paris Hilton Receive a Lighter Prison Sentence Because She's Rich? Evidence from a Survey Experiment"The title of this post is the title of this intriguing article now available via SSRN authored by Josef Montag and Tomáš Sobek. Here is the abstract:
Different people experience the same punishment in with differing intensity. Some legal scholars are proposing that improving scientific knowledge and progressing technologies, such as fMRI, need and should be incorporated in our penal systems. This would facilitate calibrating the punishment not only to the crime but also to the offender’s persona, so that different people experience the same punishment for the same crime. However, such a substantial change in the criminal law and policy requires legitimacy and popular approval.
We run a simple pilot experiment in order to ascertain whether such approval is in sight. We found that it may be in the case of pecuniary punishments. With regard to incarceration policies, however, the possibility of popular acceptance of such changes seems remote. This finding presents a potential challenge to the literature and may complicate the implementation of suggested reforms. We aim to extend our study to investigate the factors behind this divergence and to check robustness of our experiments in Germany and the US.
Friday, October 04, 2013
Third Circuit concludes juves serving LWOP made "prima facie showing that Miller is retroactive"As reported in this AP article, headlined "3 Lifers Win Ruling in Juvenile Sentencing Case," the Third Circuit yesterday handed down an important, but nuanced, ruling concerning the retroactive application of the Supreme Court's Eighth Amendment ruling in Miller concerning mandatory LWOP sentencing for juvenile offenders. Here is a summary of the ruling and some initial reactions thereto via the AP:
Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.
The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.
The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.
Defendants Michael J. Pendleton and Franklin X. Baines are in Pennsylvania prisons, while defendant Corey Grant is serving life in New Jersey.
Baines' lawyer, David R. Fine, said the decision means the appeals court "agreed there's at least an argument that Miller is retroactive." Baines is "going to have to convince that judge that Miller applies retroactively," Fine said. "And if he convinces the judge of that, obviously, there can be appeals."
The opinion noted a split in similar decisions being made by other federal circuit courts across the country, and Tasha Jamerson, a spokeswoman for the Philadelphia district attorney's office, called it an issue "that will be finally resolved by the United States Supreme Court."
Her counterpart in Pittsburgh said the Allegheny County district attorney's office might appeal to the U.S. Supreme Court. "We're going to talk to Philadelphia," said Mike Manko, spokesman for Allegheny County District Attorney Stephen Zappala. "They had a co-filing, and we'll see what the best thing to do is at this point."
Grant's lawyer, David B. Glazer, said the next step will probably be a scheduling order by the district judge, possibly including a requirement for legal briefs. He said Grant was convicted of a drug-related murder that occurred a few days after his 16th birthday. "It's one of the hurdles along the way," Glazer said. "We're just excited about the possibility of getting him back to court."
Pendleton's lawyer, federal public defender Lisa Freeland, said she was very happy with the decision. Her client was convicted of second-degree murder for the 1997 shooting death of a Pittsburgh jitney driver during a robbery, according to a magistrate judge's report in his federal court file. "We still have a ways to go, but this is a necessary first step to getting relief for Mr. Pendleton," Freeland said.
The panel opinion from the Third Circuit in these consolidated cases is available at this link; here are key excerpts:
In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'” Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, “Petitioners”), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey....
After extensive briefing and oral argument, we conclude that Petitioners have made a prima facie showing that Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v. United States, No. 13-2426 (2d Cir. July 16, 2013) (granting motion to file a successive habeas corpus petition raising a Miller claim); In re James, No. 12-287 (4th Cir. May 10, 2013) (same); Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (concluding that Miller is not retroactive), reh’g en banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same).
Because of the circuit split noted by the Third Circuit (which has a notable north/deep south quality to it), the Supreme Court is surely likely to take up this issue in some form at some point in the not too distant future.
Thursday, October 03, 2013
Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offenderThanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:
David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.
This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.
McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.
We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.
October 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
"Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning"The title of this post is the title of this new paper available via SSRN and authored by John Monahan and Jennifer Skeem. Here is the abstract:
After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning. In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ. We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.” Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.
Should downloading a few pics of child porn result in attorney's disbarment?The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:
Gary Douglass Grant is a lawyer with a big problem. In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.
One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."
The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.
From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."
Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.
Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.
Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)
At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.
Wednesday, October 02, 2013
Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
While October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down. But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms. And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.
This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:
Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.
Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.
There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”
There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.
Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system. “But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”
Wright said prison costs and issues of fairness have driven the new process. “Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”
Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said. “The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’ It’s an issue of fundamental fairness.”....
The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.
Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.
“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”
I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.
For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:
- "Madison County courts must adjust to new, lighter sentences for nonviolent offenders"
- "Mobile-area prosecutors rip sentencing rules calling for little or no prison time"
- "First challenge in sentencing guidelines? Getting judges to fill out the paperwork"
- "Shortsighted? Critics question whether sentencing reform will create repeat offenders"
Tuesday, October 01, 2013
Unusual (and cruel)?: two distinct life sentences from the same judgeThe title of this post is my attempt to put a humurous spin on this notable local story, headlined "Judge sentences killer, performs wedding," involving a defendant having two notable (and surely life changing) experiences on one sentencing day this week. Here are the details:
For Danne Desbrow, Sept. 17 was a day with some bad news, and some good news.
First, the bad. He was sentenced to 53 years to life in prison by San Diego Superior Court Judge Patricia Cookson, after being convicted of the murder of another man in Lemon Grove a decade ago.
Then, the good: He got married — by the same judge who had sentenced him to decades behind bars just a few minutes earlier. And he got a slice of cake to eat in the courtroom too, baked by the judge herself.
The wedding ceremony, which came minutes after what several witnesses described as an emotional sentencing hearing, was highly unusual. Judges frequently marry people, and occasionally perform marriage ceremonies for people in custody. But doing so in the courtroom after sending the groom to a lifetime behind bars is pretty much unheard of....
For Desbrow’s lawyer, whose motions for a new trial and a delay in sentencing were abruptly rejected by Cookson at the start of the court hearing, the entire event was surreal. “I didn’t know it was going to happen,” said defense attorney Steve Cline. “Obviously, it was an unusual day from start to finish. I mean, I appreciate that she honored the request for them to marry. But, I’ve never seen anything like that.”
Desbrow, 36, was sentenced for the killing of Kevin Santos in 2003. Deputy District Attorney Joe McGlaughlin said the case went unsolved for years until a witness came forward and gave key information pointing to Desbrow. Cline said the defense argued the case was not murder but that Desbrow was defending himself in a fight. After a two-month trial, jurors convicted Desbrow of first-degree murder.
It was during the trial that Danne Desbrow popped the question to his wife-to-be, Destiny, 33. She said in an interview they had begun dating when she was 16, but when she got pregnant the two lost contact.
Last year she said her son wanted to meet his father. Using social media, she was able to track down Desbrow’s family and in January they met for the first time in years — when Danne Desbrow was in jail awaiting trial.
Regular visits followed and Destiny sat through each day of the trial. After the proposal she said she called Cookson’s chambers and asked if the judge would marry them at sentencing. “She called me back and sad yes, she would,” Destiny Desbrow said, adding she was somewhat surprised the judge agreed. The judge’s secretary even called two days ahead of time to make sure everything was in order — rings, notary, documents.
So, after sentencing Danne Desbrow to two consecutive 25-year to life terms (one for the use of a gun in the murder) and another three years for threatening a witness, Cookson concluded the hearing. Members of Santos’s family, who had spoken angrily to Desbrow, were escorted out of the courtroom, according to two people who saw the wedding....
“That is something that does not happen with great regularity,” said Jan Caldwell, a spokesman for Sheriff Bill Gore, who oversees the county jail system. “I’ve never heard of it.”
Weddings in jail are not uncommon, she said. They occur with some frequency during regular visiting hours. Newlyweds have to get their own justice of the peace, and the vows are exchanged through the glass separating visitors from inmates.
Desbrow intends to appeal the murder conviction. He remains in county jail pending another court hearing on a separate case in October. His wife remains hopeful. “I have faith God is going to bring him home,” Destiny Desbrow said.
Will government shutdown have any big impact on the federal criminal justice system?As reported in this Washington Times article, Attorney General Eric Holder made some headlines yesterday by lamenting the impact of political dysfunction inside the Beltway. Here are some details:
Some FBI agents and federal prosecutors face furloughs if the government shuts down Monday night, and Attorney General Eric H. Holder Jr. said he would take a voluntary pay cut because of political “dysfunction.”
“People are trying to make a political point, and I’m trying to run a Justice Department,” Mr. Holder told reporters Monday. “We’re trying to keep the American people safe. We’re trying to keep crime down. We’re trying to go after financial crimes. There are a whole range of things that we are simply trying to do.”
The nation’s top law enforcement official said Justice Department officials were still evaluating how many furlough notices to send out in the event that Congress and the White House fail to reach a temporary budget deal before midnight Monday. “It is entirely possible that we will have to put on furlough FBI agents, prosecutors as a result of … the dysfunction that exists primarily in the House,” Mr. Holder said. “That is going to have a disruptive impact on the work of the Justice Department.”
He said he would take a pay cut in solidarity with furloughed employees. “As I’ve made clear to the people in this department, we are all in this together, and whatever pain they suffer, I will share with them,” Mr. Holder said.
Based on other reports and what federal judges and defense attorneys have been saying, I surmise that the sequester continues to have a bigger impact on the day-to-day work of the federal criminal justice system than a short-term government shutdown. But I surmise that various difficulties created by budget cut backs are likely to be exacerbated by this latest round of political posturing.
More broadly, I cannot help be think and fear that the momentum building for statutory sentencing reforms must be getting slowed down as a result of all the Beltway bickering. The optimist in me hopes that when this latest budget crisis passes, legislators will be eager to make peace by passing some bi-partisan legislation such as the Justice Safety Valve Act and/or the Smarter Sentencing Act. But my pessimistic side fears that these folks will have a hard time agreeing on anything in the weeks and months ahead.
Monday, September 30, 2013
"Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments"The title of this post is the title of this very interesting new paper on SSRN authored by the always interesting Donald Dripps. Here is the abstract:
The late, and justly celebrated, William Stuntz made many contributions to the literature on criminal procedure. Among these is the arrestingly counter-intuitive thesis that the Warren Court’s pro-defense procedural rulings made a causal contribution to the “punitive turn” in the substantive criminal law. This article, contributed to a symposium on Criminal Justice at the Crossroads held at USC on June 7, 2013, and forthcoming in the Southern California Law Review, aims to test this thesis empirically.
Before the Warren Court, criminal procedure was not uniform across the states. Some were more liberal and some more conservative. The article argues that these differences set up natural experiments. We would expect the Warren Court’s decisions to provoke more powerful reactions in jurisdictions where local practice was more radically transformed. We can assess whether conservative jurisdictions increased the severity of the substantive law faster than counterpart jurisdictions with more liberal baseline procedures.
The article measures punitiveness according to an index of prisoners per homicide. It codes eight US jurisdictions as liberal or conservative in their pre-Warren Court criminal procedure. Generally similar jurisdictions with marked differences in their criminal procedure are then compared: liberal California with conservative New York, liberal Illinois with conservative Ohio, liberal Kentucky with conservative Maryland, and liberal DC with conservative Virginia. The data in general do not support Professor Stuntz’s claim that liberal procedural rulings encouraged more punitive substance.
Further study is warranted. The available evidence, however, does not suggest the existence of a general substance-procedure feedback loop that should cause judges, legislators, or law enforcement officials to hesitate to adopt otherwise justified reforms.
Detailing Florida's continuing struggle to deal with Graham and MillerThis lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:
With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences. The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.
But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....
Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders. One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010. The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.
In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.
He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....
Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action. “They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”
There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice. “If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...
Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.
But reviving the parole system would likely meet resistance from lawmakers. “Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”
Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term. “We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.
While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”
Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.
September 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, September 29, 2013
Boston Globe says "Eric Holder shouldn’t seek death for Dzhokhar Tsarnaev"This new Boston Globe editorial argues that the top US prosecutor ought not seek the punishment of death for the last living Boston Marathon bomber. Here is part of the paper's pitch:
In the raw days after the Marathon bombing in April, Mayor Tom Menino spoke for many Bostonians when he raised the prospect of executing those who were responsible. Though normally a death penalty opponent, Menino said that the barbarity of the attackers, who killed four people and maimed dozens, might sway him.
Now, as surviving suspect Dzhokhar Tsarnaev faces trial, that question looms for federal prosecutors, who are in the midst of a lengthy process to decide by Oct. 31 whether to seek the 19-year-old’s death by lethal injection. It’s certainly understandable why many friends, family, and supporters of the victims hope prosecutors will seek the ultimate vengeance against the man they believe masterminded the bombing along with his older brother, Tamerlan. Still, Attorney General Eric H. Holder Jr. should decide against it....
In addition to the extra cost of capital prosecutions — cases can exceed $10 million — death penalty cases drag on for years, through numerous appeals. Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims. Many people would feel compelled to defend Tsarnaev on the basis of his youth, lack of past offenses, and being under the influence of his older brother — all factors that would mitigate against a death sentence. Years of proceedings, and their potential culmination in a death sentence, would also give Tsarnaev what he and his brother apparently sought: publicity and notoriety. Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there.
It’s possible that prosecutors are keeping the death penalty on the table primarily to use as leverage against Tsarnaev, hoping that he will agree to plead guilty, skip a trial, and accept life imprisonment in order to save his life. Such a strategy raises worries about fairness under any circumstances, since it puts enormous pressure on defendants to give up their right to a trial. In this case, it’s also unnecessary. The evidence against Tsarnaev is overwhelming, and prosecutors should have nothing to fear from bringing the case to trial.
Beyond the details of this particular case, of course, lies the deeper question of whether the death penalty itself is ever right. There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion. The bombing was a terrorist act aimed at this Commonwealth, where the death penalty has been repeatedly debated and repeatedly rejected. A recent Globe poll found that Boston residents oppose the death penalty for Tsarnaev by a solid margin. Of course, the attorney general should be under no legal obligation to consider the temper of the city. But perhaps it will give him the cover to make the right call. If Massachusetts can reject the death penalty, even after the most awful crimes, so can Holder.
Some recent prior posts:
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
"Life Without Parole as a Conflicted Punishment"The title of this post is the title of this lengthy and notable new article available now via SSRN and authored by Craig Lerner. Here is the abstract:
Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed -- that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.
September 29, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Friday, September 27, 2013
Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencingThanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:
This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.
After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).
The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.
An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.
Recent related post:
September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack
Thursday, September 26, 2013
New trial granted for defendant subject to long mandatory sentence in Florida "warning shot" case
As reported in this news report, headlined "Marissa Alexander will get a new trial," today there was a notable development in a notable Florida criminal case that garnered some additional attention in the wake of the George Zimmerman prosecution. Here are the basics:
The relatively short opinions in this case (a majority opinion and a concurrence) can be accessed at this link.
Marissa Alexander, the African-American woman who was sentenced to 20 years for discharging a firearm in Florida despite pleading Stand Your Ground against her husband, will get a new trial. Alexander, 32, said she fired a bullet at the ceiling because she was afraid of her husband. No one was injured. It took 12 minutes for the jury to convict her.
“We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law,” wrote Judge James H. Daniel, “but we remand for a new trial because the jury instructions on self-defense were erroneous.”
Alexander, who had given birth the week before, testified that after an altercation regarding texts from her ex-husband, she locked herself in the bathroom. Her husband Rico Gray broke through the door, grabbed her by the neck, and shoved her into the door. She ran to the garage, found she couldn’t get the door open, and returned with a gun. When Gray saw the gun, he said, “Bitch, I’ll kill you.” Alexander testified that firing the gun into the air as a warning shot was “the lesser of two evils.”
The jury rejected her self-defense argument, and instead Alexander was sentenced under the “10-20-Life” law, which carries a series of mandatory minimum sentences related to gun crimes. The prosecutor in her case was Angela Corey, who also prosecuted George Zimmerman who was acquitted in the death of Trayvon Martin....
The appeals court judge ruled that the lower court judge improperly put a burden on Alexander to prove that the firing was in self-defense. “The defendant’s burden is only to raise a reasonable doubt concerning self-defense,” Daniel wrote. “The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt.” He ordered a retrial. A separate proceeding would determine whether Alexander could be released on bail pending that trial.
Prior related posts:
- Very different case provides a very different (sentencing) perspective on Florida gun laws
- Another obvious mandatory sentencing injustice in Florida "warning shot" case
- Extreme sentence in warning shot case drawing more criticisms of mandatory minimums
Wednesday, September 25, 2013
"Lethal Injection Secrecy Post-Baze"The title of this post is the title of this new and timely piece available via SSRN authored by Deborah Denno. Here is the abstract:
This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution. The Baze Court declared Kentucky’s lethal injection protocol constitutional. Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency. This article’s unique analysis of over 300 cases citing Baze from 2008-2013 reveals that states’ lethal injection protocols have become increasingly diverse from one another, and from the original protocol evaluated by the Baze Court. Consequently, Baze has been rendered largely irrelevant a mere five years after its issuance.
Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions. A growing number of states are considering the use of compounding pharmacies to manufacture lethal injection drugs. Yet proposed (and seemingly inevitable) legislation that would increase regulation of these facilities may render compounded drugs ineligible for use in executions.
Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures. This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.
Tuesday, September 24, 2013
Documenting the enduring challenges of reentry for parolees and society in Colorado
The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:
Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:
Predicting who will murder is now a science. In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.
The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania. "It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."
The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.
In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said. The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.
Pennsylvania is expected to apply the software for all parolees by the end of the year. Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.
A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles. Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.
Monday, September 23, 2013
Intriguing sparring over federal capital recommendation procedure in Boston bombing caseThis AP article, headlined "Lawyers ask for more time to submit arguments against death penalty in Boston Marathon bombing," reports on an interesting tussle over procedure in a hearing today concerning one of the highest-profile on-going federal prosecutions. Here are the basics:
Federal authorities plan to recommend whether to seek the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev by the end of next month and expect U.S. Attorney General Eric Holder to decide early next year whether to pursue it, prosecutors said Monday.
But Tsarnaev’s lawyers objected to the timetable and asked a judge for more time to make their case against the death penalty. During a status conference in U.S. District Court, Tsarnaev’s lawyers said they have not received key evidence from prosecutors yet — including interviews or grand jury testimony of Tsarnaev’s family — and have not had enough time to submit a proposal arguing that Tsarnaev does not deserve the death penalty.
Assistant U.S. Attorney William Weinreb argued that the defense has had almost six months since the bombing. He said federal prosecutors plan to make a recommendation to Holder by Oct. 31. He will have the ultimate say on whether to seek the death penalty; his decision is expected by Jan. 31, Weinreb said....
Weinreb said prosecutors originally asked Tsarnaev’s lawyers to submit their arguments by Aug. 23 but agreed to extend that deadline to October at their request. He said prosecutors are not required by law to wait for input from the defense before submitting their recommendation to Holder. “We think that six months is a reasonable time,” he said.
But Judy Clarke, one of Tsarnaev’s lawyers, said “it’s a matter of fairness” and asked the judge to delay the date for their submission at least until they get the evidence they are seeking. “It’s pretty stunning to say they can make a decision based on what they know without some defense input,” said Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for high-profile clients, including the Unabomber and the gunman in the rampage that wounded former U.S. Rep. Gabrielle Giffords of Arizona.
Judge George O’Toole Jr. took no immediate action on the request but agreed to allow the defense to submit arguments on whether the court has the authority to reset any deadlines.
Some recent prior posts:
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
In praise of a stat-max fine that hits a federal white-collar defendant (and not the federal taxpayer) where it hurts
Some readers of this blog may come to (wrongly) believe I tend to disfavor most harsh punishments, whereas in fact I tend to favor most harsh punishments if and whenever they prove to be especially efficacious and economical. Consequently, I tend to be fairly skeptical of punishments in the form of lenghty terms of imprisonment, whereas I tend to be fairly supportive of punishments in other forms.
This mini backstory on my views is provided here to account for my particular affinity for the sentence imposed and now affirmed (via an unpublished ruling) in United States v. Turner, No. 12-6483 (6th Cir. Sept. 20, 2013) (available here). Here is how the opinion gets started, which provides a summary of the ruling and the facts which led up to the defendant's prosecution:
Arch Turner appeals a $250,000 fine imposed by the district court as part of his sentence for conspiring to buy votes. He argues that the fine is procedurally unreasonable because the court did not provide specific reasons for the variance from the Guidelines range of $4,000 to $40,000, and that it is substantively unreasonable because the court impermissibly considered Turner’s socio-economic status. We conclude that the court adequately explained its reasoning in open court, that any deficiencies in duplicative explanations did not rise to the level of plain error, and that the court did not impermissibly rely on Turner’s socio-economic status. Accordingly, we AFFIRM Turner’s sentence.
Arch Turner, a superintendent of the Breathitt County, Kentucky schools, led and assisted a group of people to buy votes for a candidate in a May 2010 primary election. He coordinated meetings in which he distributed funds he had received from third parties for the purpose of buying votes, and he withdrew cash from his own bank account for the same purpose. During the government investigation, Turner lied to an FBI agent, convinced a co-conspirator to lie to a grand jury, and attempted to convince another co-conspirator to lie to FBI agents. During one such attempt, he told a co-conspirator that the FBI had no evidence against them and that they would not get in trouble if neither of them told on the other. During another, Turner contacted his codefendant, which was a violation of his bond release, told his co-defendant that he could not tell on anyone because he had not seen cash change hands, and instructed his co-defendant to purchase a phone that could not be traced. Eventually, Turner decided the jig was up and pleaded guilty to conspiracy to defraud the United States through buying votes, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).
Thanks to a plea deal, this vote-buying scoundral faced "an advisory Guidelines range of 18 to 24 months imprisonment plus 1 to 3 years of supervised release and a $4,000 to $40,000 fine ... [and a] statutory maximum sentence [of] 5 years of imprisonment plus 3 years of supervised release and a $250,000 fine." The district judge thereafter notified In October 2012, the district court issued a notice advising the parties that the court intended to consider an upward variance from the Guidelines range and sought at sentencing to hear arguments concerning an upward variance of “not only time but money.” In the end, the sentencing judge imposed a 24-month prison term (the top of the calculated range) as well as a stat-max fine of $250,000.
I suspect that a number of federal sentencing judges may have shared the view that the defendant in this case deserved to have the "book thrown at him," but I fear that most would have done so by increasing the length of the defendant's imprisonment rather than maxing out his fine. As a federal taxpayer who usually see little obvious public safety benefit from imprisoning a non-violent white-collar offender for more than a few years, I am pleased that the judge in this case concluded that it would be arguably more fair and efficient to punish in this case with a greater deprivation of property rather than a greater deprivation of liberty.