Wednesday, September 24, 2014

Absent evidence of threats to humans, is incarceration for five years for animal abuse needed (or helpful)?

Justice_4_rose_tshirt-rf92764868c3241a48727a11177e14794_804gy_512Like all good people, I really like puppies and really dislike animal abuse.  Still, after being drawn in to this Florida sentencing story by the headline "Man Rapes Pit Bull Puppy, Sentenced To Five Years In Jail For Sexually Abusing Dog," I kept wondering what else the defendant must have done other than abuse his dog in order to be sentence to half a decade behinds bars.  But the most complete story I could find about this "puppy rape" case, here from the Daytona Beach News-Journal, heightens my concern that Florida taxpayers are now going to have to spend a lot of money incarcerating a disturbed old man who presents no obvious threat to humans and clearly needs treatment to deal with his affinity for bestiality. Here are the basics:

A man whose sexual battery of a pit bull puppy did not rise to the level of state prison time, nonetheless received five years behind bars Friday afternoon after Circuit Judge Leah Case compared the crime to “systematic” and “chronic” child abuse.

When Case announced her decision to imprison James Bull of Daytona Beach, a crowd of mostly female animal advocates cheered and cried.  Many of the advocates wore T-shirts bearing the pit bull puppy’s picture and the words “Justice For Rose.”  The dog’s name was Coco, but the New York City rescue organization now fostering the milk-chocolate-colored canine renamed her Rose.

The case is the first time in Volusia or Flagler counties that a person has been convicted on the charge of sexual activity with an animal, a first-degree misdemeanor, State Attorney spokesman Spencer Hathaway said.  Bull was also convicted of two counts of felony cruelty to animals and cruelty to animals.  According to an article in the Mayport Florida Mirror in January, a St. Augustine man was convicted of bestiality with his dog and was sentenced to eight years in prison under the same state statute that was applied to Bull on Friday, Sept. 19, 2014....

Prosecutor Nathaniel Sebastian told Case that Bull did not score enough points criminally to be sentenced to state prison.  He said perhaps the defendant could get additional jail time, probation and psycho-sexual counseling.  Bull’s attorney Peter Kenny didn’t present much of an argument in his client’s favor, but did ask Case to spare Bull from prison because of his age and because he has a “bad back.”

While Case acknowledged that indeed Bull didn’t score high enough for prison, she also repeated the jarring testimony given a few minutes earlier by the state’s four witnesses regarding the dog’s daily suffering.  “Although he (Bull) doesn’t score, it’s more about the intentional infliction of pain on an animal over and over again,” Case said.  “It’s like child abuse. It often happens in secret behind closed doors.”

Prosecutors called three witnesses to the stand — their fourth witness, Halifax Humane Society veterinarian Tom Frieberg, testified via telephone — who provided graphic testimony about the animal’s living conditions and Bull’s abuse.  Bull’s neighbor Dean Ray Gill testified that he constantly heard the dog yelping and “screaming.” Gill said that one day in March he was “fed up” and went to the back apartment to see what was happening to the animal.  Gill said the door to Bull’s apartment was slightly ajar and he could hear the radio or a stereo blaring inside.  Nonetheless, he could still hear the canine yelping above the music. Gill said he saw Bull sexually abusing the animal.  Bull threw the dog aside and closed the front door, the neighbor testified.

Daytona Beach animal control officer Eva Burke said that when she arrived at Bull’s residence on March 18, the dog was chained to a porch and could not move because the chain was too short. Burke also said the animal’s rib cage was showing.  Both Sebastian and Assistant State Attorney John Reid showed their witnesses photographs of the dog when police arrived on scene.  Hathaway, the assistant state attorney who initially had the case, said the pictures were horrifying.  Kenney did not call any witnesses on behalf of Bull.

At the risk of being labelled "soft on puppy rapists" or not loving animals, I cannot help but wonder and worry about the quality of representation this defendant received and about the need for such a lengthy term of incarceration if there is was indeed no evidence this defendant ever hurt a human or had plans to abuse humans. This defendant is plainly disturbed and his mistreatment of animals should be punished, but will a five-year jail term help this defendant get needed treatment or help safeguard the community upon his eventual release? Especially because there is considerable evidence suggesting certain types of offenders become MORE likely to recidivate as a result of a term of incarceration, I fear that this kind of "Justice for Rose" will actually entail greater expenses and an eventual greater threat to public safety for the people of Florida.

September 24, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Brennan Center urges new orientation in "Federal Prosecution for the 21st Century"

As noted in prior posts here and here, Attorney General Eric Holder gave a big speech yesterday in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." In that speech, AG Holder praised the Brennan Center's effort to encourage prosecutrs to "shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success."  These Brennan Center efforts are reflected in this important new publication titled "Federal Prosecution for the 21st Century." Here is how the Center describes this report:

This new report from the Brennan Center for Justice at NYU School of Law proposes modernizing one key aspect of the criminal justice system: federal prosecutors. Prosecutors are in a uniquely powerful position to bring change, since they make decisions about when and whether to bring criminal charges, and make recommendations for sentencing.  The report proposes reorienting the way prosecutors’ “success” is measured around three core goals: Reducing violent and serious crime, reducing prison populations, and reducing recidivism.  The mechanism for change would be a shift in how attorneys' performance is assessed, to give prosecutors incentives to focus on how their practices reduce crime in and improve the communities they serve, instead of making their "success" simply a measure of how many individuals they convict and send to prison.

September 24, 2014 in Data on sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, September 23, 2014

Noting the dynamics and debate over risk-assessments at sentencing

NA-CC851_SENTEN_D_20140923153009This new Wall Street Journal article, headlined "Judges Turn to Risk-Evaluation Tools in Sentencing Decisions: Many Are Adopting More Systematic Approach to Assessing Likelihood of Reoffense," discusses the always interesting issue of using risk-assessment measures at sentencing.  Here are excerpts:

Judges have always considered the risk of reoffending in meting out sentences, and they generally follow guidelines that dictate a range of punishment for a given offense.  [More recently], however, [there is] a broad effort to bring a more scientific approach to decisions made by judges, parole officers and corrections officials working in a system that often relies on gut instinct.  Risk-evaluation tools have emerged as a centerpiece of efforts to reduce the U.S. inmate population, which jumped from around 200,000 in the early 1970s to over 2 million today.

Many parole boards now weigh risk scores when considering early release, and prison officials use them to determine the level of security offenders need during their stay.  But the adoption of such tools has sparked a debate over which factors are acceptable. Attributes such as age or sex, which employers are generally forbidden from including in hiring decisions, are considered by criminal-justice experts to be strong predictors of whether an offender is likely to commit a crime in the future.

The measures vary widely but generally are based on an offender's criminal history and, in addition to age and sex, may include marital status, employment and education, according to Sonja Starr, a law professor at the University of Michigan.

Pennsylvania, one of the latest states to turn to actuarial tools in sentencing, is building a test that weighs the nature of offense, criminal history, age, sex and county of residence. The last factor is the most controversial as it could be considered a proxy for socioeconomic status.  Missouri takes into account current offense and criminal history, age, whether the offender has a history of substance abuse, education level and employment.

Judges aren't bound by the evaluations, but there is evidence they are taking them into account. Virginia officials attribute a more than 25% drop in the number of nonviolent offenders sent to prison annually to the assessments, used to score felons convicted of fraud, larceny and drug crimes since 2003.  In the past decade, the percentage of offenders serving prison terms for violent crime has risen to 74% from 61%, said Chief Judge Bradley B. Cavedo of Richmond Circuit Court. "It doesn't really control the outcome, but it is useful information," he said of the measures.

The efforts have drawn skepticism from Attorney General Eric Holder, who told a group of defense lawyers in Philadelphia last month that basing sentencing on factors such as a defendant's education level "may exacerbate unwarranted and unjust disparities."

There is no research yet on whether the use of risk evaluations in sentencing has aggravated, for example, the gap between sentences for black and white men for similar crimes.  Ms. Starr said the disparities created by risk measures are evident. "When it comes down to it, these assessments stand for the proposition that judges should sentence people longer because they were in foster care as children or had too many bouts of unemployment," she said.

Christopher Slobogin, a Vanderbilt University law professor, said the alternative was potentially worse.  "At least these risk-assessment instruments don't explicitly focus on race or poverty, unlike what might occur in a sentencing regime where judges are making risk assessments based on seat-of-the-pants evaluations," he said.

Recent related posts:

September 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Highlights from AG Holder's big speech today at the Brennan Center for Justice

As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it.  But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....

Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well.  And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”  And this has been borne out at the national level, as well.  Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....

Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many ‎decades.  Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion.  The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.  As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....

Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance  — have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.

Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so.

September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, September 19, 2014

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

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

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

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

September 19, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, September 18, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, September 15, 2014

Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion

As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:

Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.

On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.

“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”

This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:

CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.

With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.

September 15, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Unbundling Criminal Trial Rights"

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

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

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

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

Encouragingly, private prison company CCA turning focus to reducing recidivism

NA-CC714_PRISON_D_20140912165107This recent Wall Street Journal article, headlined "Prison Firm CCA Seeks to Reduce Number of Repeat Offenders: Company Pushes to Reduce Costs Associated with Recidivism," reports on a private industry's latest encouraging response to the latest market realities in corrections. Here are the details:

The nation's largest private prison company is shifting its focus toward helping release more inmates and keep them out — a reaction, company officials say, to changing policies around the country on the severity of criminal punishment.

After three decades of surging prison populations, the number of people behind bars is starting to decline, albeit slowly. There were more than 2 million people locked up in federal and state prisons and jails in 2012, the last year for which the Justice Department has published data. That year saw prisons and jails release 27,500 more inmates than they took in, marking the fourth year of a declining prisoner population.

Yet repeat offenders remain a costly headwind. A Justice Department study of data from 2005 to 2010 in 30 states found that three out of four released prisoners will be rearrested within five years of their release. Getting a high-school equivalency degree while in prison, however, can greatly reduce the chances of being rearrested, studies show. A 2013 study by the Rand Corp. think tank concluded that spending $140,000 to $174,000 on education programs for a hypothetical group of 100 inmates would save as much as $1 million in re-incarceration costs over a three-year period.

Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.

He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people—nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.

"This is a watershed moment for our company and we hope it will be for our entire industry," Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that."...

Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, has doubts about the company's new initiative. "It must be a challenge for CCA to implement programs that could reduce recidivism when that runs counter to the private prison model itself," she said. "We can only hope that CCA's interest in such programs indicate a shift away from its previous stance that 'reductions in crime rates' are a 'risk factor' for business and toward a completely new business model that does not rely on ever-growing mass incarceration."

Over the past two decades, government agencies have gravitated toward contracting with CCA or other private prison firms, often with a goal of saving money on the daily cost of housing inmates. In recent years, however, company officials are increasingly being asked by governments to cut down the cost of repeat offenders, Mr. Hininger said. Mr. Hininger compared the cost of recidivism on government budgets to the cost of long-term pension obligations and health-care coverage — issues that elected officials hadn't often thought of when drafting year-to-year budgets in the past but are now of increasing concern in more state capitals....

Jason Clark, a spokesman for the Texas Department of Criminal Justice, which contracts with CCA at some facilities, said the state began a push to expand rehabilitation and re-entry programs, which led to a drop in its recidivism rate from 25.3% to 22.6% over a three-year period. "Those are real numbers and real savings because less people are coming back into the prison system," Mr. Clark said. "We believe that continuing to invest in diversion and treatment initiatives is the best strategy to maintain a stable and successful criminal-justice system."

In a speech broadcast to CCA's roughly 15,000 employees, Mr. Hininger said the company plans to expand its postprison work around the country, noting that currently much re-entry work is done by small businesses and nonprofit groups that lack CCA's ability to scale up such work in larger facilities in many cities. He declined to say which cities. "What we've seen as we've looked around the U.S., it is a little fragmented, as smaller operators providing these solutions," Mr. Hininger said in the interview. "We see an opportunity to provide some consistency and expertise."

Mr. Hininger emphasized rehabilitation has always been part of CCA's work, but said that going forward it would be part of each employee's job description. He said that from the first day a prisoner arrives, that prisoner should be evaluated and steered toward effective rehabilitation programs.

Stories like this partially account for why I tend to be more hopeful than most other reform advocates concerning the role that private industry might play in improving the state of incarceration nation. Though I worry about how a profit motive can and will skew priorities and incentives in corrections, modern mass incarceration is the product of government agents playing politics much more so that the product of private actors pursuing profits. Consequently, I am eager to be open-minded about the potential for private players to improve the status quo, even while so many others claim that private prisons are sure to make bad matters worse.

September 15, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, September 10, 2014

"Misdemeanor Decriminalization"

The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.

But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.

The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, September 09, 2014

Pitching argument to pitch death penalty as failed government policy

Daniel LaChance has this notable new op-ed in today's New York Times headlined "What Will Doom the Death Penalty: Capital Punishment, Another Failed Government Program?". Here are excerpts:

To opponents of the death penalty, recent accounts of botched executions and DNA-based exonerations of death-row prisoners have revived hope that judges and voters will finally see capital punishment for what it is: an intolerable affront to human dignity.

But while such optimism is understandable, it is misplaced....

[F]ederal oversight of capital cases ..., more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty.  New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date.  The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent.  The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”...

Efforts to remedy the problem by reforming the appellate process have been unsuccessful. In 1996, when the average stay on death row was approaching 11 years, Congress enacted legislation restricting death-row inmates’ access to federal courts, in order to speed up executions.  But it didn’t work; since then, the time between sentencing and execution has grown by over 50 percent.

The problem, it turns out, isn’t foot-dragging by defense lawyers or bleeding-heart judges. It’s money.  In California, for instance, the low wages paid by the state to qualified lawyers who take on indigent inmates’ appeals have meant that there aren’t enough lawyers willing to do the work.  Inmates wait an average of three to five years after sentencing for a government-appointed lawyer to handle their appeal.  And that’s just the beginning of a process — sometimes lasting 25 years or more — that a federal judge recently determined was so protracted that it made capital punishment in California unconstitutionally cruel and unusual....

As depressing as it may be to abolitionists driven by a commitment to human rights, Americans, most of whom are white and live above the poverty line, find it hard to sympathize with members of an indigent, mostly minority death-row population who have been convicted of horrible crimes.  Preaching to the congregation rather than the choir, then, ought to focus on the failure of capital punishment to live up to the promise of retributive justice it once held.

Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend, and that the only solutions to the problem — an elimination of appellate lawyers for death-row inmates or a financial bailout — are unlikely to be legal or feasible.

Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government.  Arguing that the death penalty is an affront to human dignity just doesn’t work.  But portraying it as another failed government program just might.

September 9, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, September 08, 2014

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

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

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

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

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

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

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

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

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

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

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

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

"The Dilemmas of Excessive Sentencing: Death May Be Different But How Different?"

The title of this post is the title of this essay by Michael Meltsner now available via SSRN. Here is the abstract:

This article is adapted from a speech given by the author in honor of Hugo Adams Bedau, inaugurating the Hugo Adam Bedau Memorial Lecture Series at Tufts University. The article explores the differences and substantial similarities of a prisoner being sentenced to death row versus being sentenced to life without parole.

The article strongly advocates granting parole eligibility to those with life sentences. It provides several examples detailing why this is so difficult politically, and highlights how Supreme Court rulings in Miller v. Alabama and Graham v. Florida, holding mandatory life without parole as unconstitutional for minors, implicate the same set of issues. The piece ends with a list of systemic reforms that would improve the criminal justice landscape.

September 8, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt

Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader.  Here is the text of Judge Noonan's Hardrick concurring addition:

I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.”  See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense.  It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty?  Better to stop a crime’s commission than mop the consequences.

Judge Reinhardt's comment are a bit more extended, and here are excerpts:

Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals.  I do not agree, however, that advertising the legal consequences is a solution to the problem.  Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct.  Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now.  Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution.  See 18 U.S.C. § 2252(b)(1).  Nor are mandatory sentences of fifteen to forty years for a second.  See id.....

I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography.  I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.

There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far.  Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children.  All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.

September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, September 02, 2014

"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

September 2, 2014 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

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

Monday, September 01, 2014

Gendered perspective on Ohio's challenges with opioids and prison growth

As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population.  And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.

Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.

September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Friday, August 29, 2014

Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud

Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient.  But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.

The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners.   Here are snippets that help highlight why:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....

In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.

On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).

The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....

While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation.  This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."

Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court. 

August 29, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"Mass Probation: Toward a More Robust Theory of State Variation in Punishment"

The title of this post is the title of this intriguing new paper by Michelle Phelps available via SSRN. Here is the abstract:

Scholarship on the expansion of the criminal justice system in the U.S. has almost exclusively focused on imprisonment, investigating why some states lead the world in incarceration rates while others have restrained growth.  Yet for most states, the predominant form of punishment is probation, and many seemingly progressive states supervise massive numbers of adults on community supervision.  Drawing on Bureau of Justice Statistics data from 1980 and 2010, I analyze this expansion of mass probation and develop a typology of control regimes that theorizes both the scale and type of formal punishment states employ.  The results demonstrate that mass probation rearranges scholars’ conclusions about the causes and consequences of the penal state.

August 29, 2014 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1) | TrackBack

Tuesday, August 26, 2014

Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details: 

Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.

Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.

The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed.  The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes.  A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.

To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...

Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.

In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.

The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters.  "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.

In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual.  She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.

Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."

"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.

Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.

The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.

August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack