Sentencing Law and Policy

"Plea Bargains that Waive Claims of Ineffective Assistance -- Waiving Padilla and Frye"

The title of this post is the headline of this notable and timely new article by Nancy King now available via SSRN.  Here is the abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary.  I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

I am looking forward to finding time to read this article, in part because I have seen a number of federal plea agreements than include express waivers of the right to effective representation during plea bargaining.  I have not given much thought to the constitutional status of these plea terms, but I have long thought it ethically questionable for prosecutors to demand such terms in plea agreements and for defense attorney's to urge defendants to accept such a waiver without also advising the defendant to consider seeking outside advice as to whether he can and should accept such a term in any proposed plea deals.

This view is informed by professional conduct rules (such as this one) which often require a lawyer to recommend a client seek another independent lawyer's advice before waiving potential malpractice claims. Waiving a viable IAC claim seems comparable to waiving a malpractice claim; I think similar professional rules ought to apply to lawyers in this kind of setting, especially since it is the client's liberty and future, rather than just his money, at stake in any dealmaking in any serious criminal cases.

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal  prosecution.  But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."  Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property.  Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses.  All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings.  I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case."  And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations.  But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many?  most?  all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table.  Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims.  Consequently, I fear that many (most?  all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA.  And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• 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"

"Gideon's Shadow"

The title of this post is the title of this notable new piece by Justin Marceau, which is available via SSRN. Here is the abstract:

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right -- that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights -- this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.

This piece now joins my list of must-read pieces providing a provocative perspective during a period that has included lots of Gideon celebrations now that the decision is 50 years old. Here are links to posts noting other articles and commentary in this milieu:

• "Race and the Disappointing Right to Counsel"
• "Gideon Skepticism"
• "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
• Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

Alabama mass shooter wants (but cannot get) a death sentence rather than LWOP

A helpful readers sent me this fascinating article from Alabama, which is headlined "Man charged in Copper Top shooting writes in letter to judge that he is sorry and had asked for death penalty."  Here are the fascinating details:

Nathan Wilkins, the man charged with injuring 18 people in a July 2012 shooting at The Copper Top bar in downtown Tuscaloosa, told a judge in a letter that he is sorry and that he has asked for a death sentence.

In the letter dated April 22 sent to Tuscaloosa County Circuit Judge Brad Almond and filed Tuesday morning, Wilkins wrote that he has issues with his court-appointed attorney. "I know I can't get a fair trial in Tuscaloosa," the letter states. "It is obvious by your actions so far in making me keep the same lawyer that you appointed. I have written you telling you the problems with him but instead of taking care of it you chose to ignore it. Why would I want a lawyer representing me who has me already convicted and sentenced me to life in his mind."

In a letter sent to the judge in December, Wilkins asked for a new attorney and told the judge that he had no memory of the night. He also wrote that he had been prescribed medication that made him suicidal.

Wilkins, 45, was indicted in August on 68 counts in connection with a July rampage that included a late July 16 shooting in the Indian Lake subdivision in Northport and an early July 17 shooting at the Copper Top in downtown Tuscaloosa's Temerson Square. He is accused of using an assault-style rifle in the shootings and of setting fire to his former employer's property in Brookwood and in Northport.

Wilkins turned himself in on July 17 at a FedEx store in Jasper. He remains in the Tuscaloosa County Jail on $2 million bond. A trial has been scheduled to begin Monday.

"I had asked Ted Sexton and my lawyer to give me the death penalty but instead they want to put me in prison for life because it wasn't bad enough because no one died," the letter states. "Why send me to prison for life and support me with taxpayer money. That used to make me so mad when I wasn't in jail and paying taxes and had to support people like that. You can ask anyone who knows me that this is what I believe. So I am taking this out of your hands and sentencing myself to death."

Attempted murder is not included with capital offenses under Alabama law. "I cannot bear to be away from my family especially my grandkids for life," the letter states. "I would like to tell all involved I am sorry. I wish this incident would bring attention to prescription sleeping pills, especially Ambien, before it ruins someone elses (sic) life!  I want to say I'm sorry to everyone involved. Thank you for giving me no other choice."

This story raises so many interesting and challenging issues, I am not sure where to start.  Just discussion purposes, let me ask three different questions of three different groups of potential readers:

1. For strong death penalty opponents: "Do you think this defendant, who seems all but certain to get an LWOP sentence for his many crimes, should be allowed/enabled to commit suicide if and when he gets an LWOP sentence?"

2. For strong death penalty proponents: "Doesn't this case demonstrate that there are some defendants who truly view an LWOP sentence to be worse than death?"

3. For everyone else interested in a constitutional debate: "Do you think that, because (a) death has been deemed by the US Supreme Court to be a "cruel and unusual" punishment for Nathan Wilkins's crimes and (b) he really seems to view LWOP a punishment worse than death, is there at least a reasonable basis for his lawyers to claim that LWOP for Nathan Wilkins should also be considered "cruel and unusual" because their client (genuinely?) views such a punishment to be crueler than death?"

A big day and big new realities for criminal justice in Maryland

As reported in this Washington Post article, headlined "O’Malley to sign death penalty repeal and scores of other bills today," two big national criminal justice reform stories are finding expression in one day of bill signing in Maryland. Here are the basics:

Maryland Gov. Martin O’Malley plans to sign more than 250 bills on Thursday, including legislation to repeal the death penalty, allow undocumented immigrants to get driver’s licenses and legalize medical marijuana....

The bills were among those passed in an extraordinarily busy 90-day legislative session that ended last month. A final batch of bills is scheduled to be signed May 16.

With the governor’s signature Thursday, Maryland will become the sixth state in as many years to end capital punishment. Under the legislation, which O’Malley championed, death sentences would be replaced with life in prison without the possibility of parole.

The Catholic Church, which advocated for repeal, is planning to celebrate the signing by lighting up the Baltimore Basilica overnight. The landmark is the first Catholic cathedral in the United States.

MDPetitions, com, a conservative group, is expected to announce soon whether it will launch a petition drive to force a statewide vote on the death penalty repeal. If the group were to collect enough signatures, the law would be put on hold pending the outcome of a November 2014 referendum.

The legislation legalizing medical marijuana limits distribution to academic medical centers, which will be required to monitor patients and publish their findings.

Legislative analysts say it is unlikely that dispensing of the drug would begin before 2016. It is also unclear how many institutions might choose to participate. Two of the state’s most prominent — the University of Maryland Medical System and Johns Hopkins University — have been reluctant to get involved.

But supporters of the measure have hailed it as a significant step toward a compassionate treatment option for people with such illnesses as cancer and multiple sclerosis. Eighteen states and the District have enacted similar laws.

New big Human Rights Watch report assails placing juve sex offenders on registries

As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• 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

Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex cases

As detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student.  Here are the basics:

Erica DePalo was in the prime of her teaching career.  Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues.  But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....

The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole.  DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.

The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said.  Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said.  A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....

In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.

Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal.  If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.

The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.

Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.

The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:

Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.

A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:

• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;

• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;

• Ninety-three of the 97 cases ended in plea deals;

• €…Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.

There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.

"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.

All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school.  "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said.  "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."

Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law).  In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17. 

Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.

Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

As reported in this new AP piece, "Judy Clarke is joining the team representing the suspect in the Boston Marathon bombings."  Here is more of the basics of federal public defender Clarke's appointment:

The appointment of Clarke, based in San Diego, Calif., was approved Monday by U.S. Magistrate Judge Marianne Bowler. Bowler denied a request from Dzhokhar Tsarnaev’s public defender to appoint a second death penalty lawyer.  Bowler says Tsarnaev’s lawyers could renew their motion to appoint another death penalty expert if Tsarnaev is indicted....

Clarke’s clients have included Unabomber Ted Kaczynski; Susan Smith, who drowned her two children; and most recently Tucson, Ariz., shooter Jared Loughner.  All received life sentences instead of the death penalty.

Not quite coincidentally, this distinct AP piece from last week provided a little bit of a profile of Clarke and her work, and it highlighted her ability to working out plea deals with prosecutors that serve to spare her clients from facing the death penalty.  Not listed in this latest AP article is Clarke's representation of Olympic Park bomber Eric Rudolf, whose crimes and motivation are arguably most comparable to what it seems we so far know about Dzhokhar Tsarnaev’s crimes and purported motives.  As with the federal mass murderers Kaczynski and Loughner, Clarke helped secure an LWOP plea deal with Rudolf to save his life.

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"

UPDATE:  Just moments after click "Publish" on this post, I saw this interesting new commentary by Mark Osler at MSNBC headlined "Sentence the Boston bomber to meaninglessness." The piece contends that LWOP may be the best "punishment" in this case in these interesting terms:

[W]hat someone like Tsarnaev probably fears most is meaninglessness. He is typical of terrorists, in that he is a young man of little accomplishment who chose to make his mark on the world through a terrible act.  For someone like Tsarnaev, and many others like him, the real fear is a life of being unimportant.  The evidence of that is already clear, given that he chose a path of carnage and destruction, with the high risk of death that comes with all that, rather than to continue life as a nondescript college student.

Fortunately, the alternative to execution in the federal system is precisely what Tsarnaev seems to fear: utter meaninglessness.

Technically, the sentence is called life without parole (there is no parole in the federal system for any sentence).  However, more than anything, it is a sentence to an existence without notice or meaning, to live out one’s life without the deep interactions with the world that inspire people to great and terrible acts.  It begins with being assigned a number which largely replaces one’s name, and it ends with an unnoticed death, rather than the burst of attention that accompanies an execution.

Potent preview of pot policy prospects, problems and possibilities

With apologies for the forced illeteration in the headline of this post, I was inspired by this effective new USA Today column by Beau Kilmer headlined "7 key questions on marijuana legalization: As more states consider the move, they will face some new and tricky issues." The start of the piece and the headings highlighted below perhaps provide an explanation:

Believe me, I've heard all the pot jokes, and some of them are true.  Public support for legalizing marijuana use is at an all-time high. Some state-level marijuana laws are going up in smoke.  And yes, Washington and Colorado are embarking on a historic joint venture.

Puns aside, discussions about marijuana legalization are getting serious.  In November, voters in Colorado and Washington made the unprecedented decision to allow commercial production, distribution and possession of marijuana for nonmedical purposes.  Not even the Netherlands goes that far.

Policymakers in both states are confronting some new and tricky issues that have never been addressed.  For them, and for anyone else thinking about changing their pot laws, here are seven key decision areas that will shape the costs and benefits of marijuana legalization:

1. Production.  Where will legal pot be grown -- outdoors on commercial farms, inside in confined growing spaces, or somewhere in between?...

2. Profit motive.  If there is a commercial pot industry, businesses will have strong incentives to create and maintain the heavy users who use most of the pot...

3. Promotion.  Will states try to limit or counter advertisements in the communities and stores that sell marijuana?...

4. Prevention.  If pot is legal for adults, how will school and community prevention programs adapt their messages to prevent kids from using?...

5. Potency.  Marijuana potency is usually measured by its tetrahydrocannabinol content, or THC -- the chemical compound largely responsible for creating the "high" from pot, as well as increasing the risk of panic attacks....

6. Price.  With marijuana, like any other commodity, price will influence consumption and revenues....

7. Permanency.  The first jurisdictions to legalize pot will probably suffer growing pains and want to make changes later on....

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

Does Boston bombing provide still more support for my federal-only death penalty perspective?

As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death.  But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.

Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below.  But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings. 

Massachusetts, of course, does not have death as an available punishment.  And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty.  Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).

Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.

Lots of (mostly older) related posts on the federal death penalty:

• The federalization of the death penalty
• More support for an exclusively federal death penalty
• Context-free ruminations on the federal death penalty
• Debating the death penalty as bargaining chip
• Research on capital punishment's impact on plea deals
• Another example of the death penalty as an effective plea bargaining tool
• Great new (though still dated) examination of the death penalty and plea bargaining
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• The federal death penalty in NY and elsewhere
• Ashcroft's death penalty "legacy"
• Wondering about the state and fate of the federal death penalty
• "Cruel and Unusual Federal Punishments"
• Split Sixth Circuit reverses federal death sentence on interesting grounds
• "The Racial Geography of the Federal Death Penalty"
• Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
• Making the case for the use of the federal death penalty
• Notable commentary on "Christopher Dorner and the California Death Penalty"

UPDATE:  This new DOJ press release reports on the initial charges brought against the surviving Boston bomber.  Here is how the release starts:

Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.

In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.   The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years.  Tsarnaev had his initial court appearance today from his hospital room.

"Defensible Disenfranchisement"

The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN.  Here is the abstract:

As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders.  Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.

Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values.  In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility.  On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible.  Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.

Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observer

The sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:

Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches.  But not in federal courtrooms, where all electronic devices are banned.  But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.

Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.

On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.

Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state.  That’s when Prince admitted having photographed his friend with the phone.

When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt.  Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said.  He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone.  "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."

But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop.  Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.

On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."

A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings.  In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.

But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings.  I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?

Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev

This CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody."  Here are the basic details as of late Friday night:

The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.

Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead.  The younger Tsarnaev was in need of undisclosed medical care, the officials said.

After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...

Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston.  Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....

The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....

A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012.  Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity.  He came "a few years later" and was lawfully in the United States as a green-card holder.

In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now.  I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.

Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev.  Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case."  But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev.  Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.

Related posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?