Friday, August 29, 2014

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

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

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

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

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

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 is today's must-read for any and all white-collar practitioners.   Here are snippet 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 a case in which the defendant did not plead guilty or provide substantial assistance to the government in any way 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 (4) | TrackBack

Wednesday, August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, August 26, 2014

Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver

A helpful reader alerted me to a significant ruling today by the Third Circuit in US v. Erwin, No. 13-3407 (3d Cir. Aug. 26, 2014) (available here). Here is how the opinion starts:  

This case presents the novel question of what remedy is available to the Government when a criminal defendant who knowingly and voluntarily executed a waiver of right to appeal — and received valuable promises from the Government in return — violates his plea agreement by filing an appeal. Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846.  His agreement included a waiver of right to appeal his sentence if it was within or below the advisory Sentencing Guidelines range that results from a total advisory United States Sentencing Guidelines (“U.S.S.G.”) offense level of 39.  The Government agreed not to bring further criminal charges against Erwin in connection with the conspiracy, and it also agreed to seek a downward departure under U.S.S.G. § 5K1.1.  The Government fulfilled its part of the bargain; Erwin, who challenges his within-Guidelines sentence on appeal, did not.

For the following reasons, we conclude that Erwin’s appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver.  We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement’s terms: that is, the Government will be excused from its obligation to move for a downward departure.  We will therefore vacate Erwin’s judgment of sentence and remand for de novo resentencing in accordance with this opinion.

Matthew Stiegler in this post at his CA3blog starts his coverage of this Erwin ruling with this astute observation:

The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal.  Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.

August 26, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Notable federal case impacted by SCOTUS Miller ruling nearly two decades after initial sentencing

This local story out of Kansas City, headlined "Judge orders new sentencing hearing for defendant in deaths of six KC firefighters," reports on a notable new legal development in an old case as a result of the Supreme Court's Eighth Amendment ruling in Miller v. Alabama.  Here are excerpts (with my emphasis added for reasons explained below):

A man serving a life sentence for his role in the 1988 explosion deaths of six Kansas City firefighters will get a new sentencing hearing, a federal judge has ruled.

U.S. District Judge Fernando Gaitan signed orders Monday setting aside the life sentence given to Bryan E. Sheppard in 1997.  Gaitan ordered probation officers to prepare a new sentencing report on Sheppard and told prosecutors and Sheppard’s lawyers to write sentencing memos to be submitted to him by Sept. 26.  After that, Gaitan will review the paperwork, confer with attorneys and set a date for Sheppard to be re-sentenced, according to federal court records.

Sheppard, who was 17 at the time of the explosion, asked for a new sentencing hearing because the U.S. Supreme Court ruled in 2012 that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”

In February, prosecutors agreed that Sheppard was covered by the Supreme Court ruling and deserved a chance to make his case for a reduced sentence before a federal judge.

Firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham died before dawn Nov. 29, 1988, while fighting a fire in a construction trailer parked near the site of a U.S. 71 widening project. The trailer contained 25,000 pounds of ammonium nitrate mixed with fuel oil. It erupted in a massive explosion that ignited a second explosives trailer. The two blasts were felt for miles.

A federal jury convicted five defendants nearly nine years later. All were sentenced to life in prison.

The passage I have highlighted is noteworthy because it reveals that federal prosecutors in this case (and I am pretty sure in others) agree that the Supreme Court's Miller ruling should be applied retroactively.  As regular readers know, the issue of Miller retroactivity has split state courts and it seems only a matter of time before the SCOTUS resolves the split.

August 26, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 25, 2014

What's the likely Ninth Circuit timeline for deciding the fate of California's death penalty in Jones v. Chappell?

As first noted in this post a few days ago, California Attorney General Kamala Harris has officially noticed an appeal to the Ninth Circuit in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), the remarkable case in which U.S. District Judge Carney declared all of California's death penalty system unconstitutional.  Because the stakes are so high in California and for modern death penalty jurisprudence generally, I expect this Ninth Circuit capital appeal will get considerable attention in the weeks and months ahead and that lots of different death penalty advocates (both pro and con) will be filing amicus briefs with competing claims about the constitutionality of California's death penalty system.

As the question in the title of post highlights, though I am sure the Jones v. Chappell appeal will get garner lots of attention, I am not sure how quickly (or slowly) the Ninth Circuit will hear and decide this case.  As death penalty fans know, federal capital habeas appeals have a (well-earned) reputation for proceeding either (1) very slowly, in part because a death row defendant raises so many case-specific claims concerning errors in a state trial and sentencing, or (2) very quickly, in part because there is a looming serious state execution date and the state highlights that all reasonable claims of error have been considered and rejected before.  In Jones v. Chappell, however, at issue on appeal is just one basic system-wide constitutional concern which is being considered in a case in which no serious execution date is looming.  Consequently, there is little reason to expect this appeal to move especially slowly or especially quickly.

Notably, a bit of irony attends the question in the title of this post because the constitutional issue in Jones v. Chappell centers on lengthy delays in appellate review in California and the apparent arbitrariness of which cases get through reviews more quickly or slowly.  Arguably, the longer the Ninth Circuit appellate process takes in Jones v. Chappell, the stronger the capital defendant's claims become.  That  bit of irony aside, I am eager to hear from any infomed Ninth Circuit capital habeas practitioners or observers concerning what kind of timelines are likely in play now in Jones v. Chappell.  Is this case likely to be fully briefed before the end of this year?   Can/should we reasaonally expect oral argument to take place in the early part of 2015 and a ruling not long thereafter?

I ask these questions not only because I am genuinely wondering what kind of pacing we all should expect in this matter, but also because this case necessarily should impact any political plans that California death penalty supporters and opponents may have for the big looming 2016 election.  Supporters of a more efficient and effective California death penalty system are already on record expressing interest in a voter initiative to reform the state's capital appellate process, and steadfast opponents of the death penalty also seem likely to eye a 2016 capital repeal initiative.  Not just how, but also exactly when, the Ninth Circuit rules in Jones v. Chappell could greatly impact initiative planning and advocacy.

Recent related posts:

August 25, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, August 24, 2014

"Clemency and the Unitary Executive"

The title of this post is the title of this notable new paper by Rachel Barkow now available on SSRN. Here is the abstract:

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives — including in the field of criminal law — have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins.  But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals.  What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees?  The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power.  But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases.  While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked.  It is a critical mechanism for the President to control the executive department.  Those in favor of a unitary executive should encourage its more robust employment.  But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing.  It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree.  It is also a crucial checking mechanism given the landscape of criminal justice today.  The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record.  Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.

August 24, 2014 in Clemency and Pardons, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, August 22, 2014

California Attorney General seeking appeal in Jones v. Chappell capital case

As reported in this Los Angeles Times piece, headlined "California AG Kamala Harris to appeal ruling against death penalty," the Ninth Circuit will now be called upon to consider the remarkable decision last month by U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts last month  here and here), and now I suspect the case is going to generate lots of thoughtful amicus briefs on both sides.

For a host of reasons, I am not very surprised and I am very pleased that California AG Harris has decided to appeals the important and consequential ruling in Jones v. Chappell.  The facts stressed and conclusions reached in that decision merit greater attention and scrutiny, and proceedings in the Ninth Circuit will help ensure the cases and its issues get a wider airing.  Indeed, I would not be surprised if the Ninth Circuit ends up having both a regular panel and an en banc panel consider the issues in Jones v. Chappell all as a prelude to an (inevitable?) cert petition by the losing party on appeal.  In other words, stay tuned death penalty followers.

Recent related posts:

August 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Third Circuit finds "reprehensible" conduct regarding victim restitution not grounds for revoking supervised release

A Third Circuit panel yesterday handed down an interesting ruling in US v. Bagdy, No. 13-2975 (3d Cir. Aug. 21, 2014) (available here), reversing the revocation of supervised released despite calling the defendant's conduct "reprehensible." Here is how the Bagdy opinion starts:

At issue on this appeal is whether supervised release may be revoked and an offender sent to prison based upon a District Court’s finding that the offender acted in bad faith in relation to his obligation to make restitution to the victims of his criminal conduct.  In this case, although Appellant David Bagdy complied with the letter of the District Court’s restitution order by ultimately paying more than one-third of a $435,000 inheritance he had received while on supervised release, he engaged in a lavish spending spree that dissipated the balance of the inheritance while delaying the proceedings intended to modify the restitution order.  Like the District Court, we find Bagdy’s conduct reprehensible.  We conclude, however, that the District Court could not revoke supervised release for such bad faith conduct because Bagdy did not violate a specific condition of supervised release in relation to the restitution obligation.  Accordingly, we will vacate the judgment and remand for further proceedings.

August 22, 2014 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Thursday, August 21, 2014

Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect

Via an e-mail from the National Association of Criminal Defense Lawyer, I just learned of a notable new opinion from the Kentucky Supreme Court.  Here is an excerpt from the NACDL's account of the ruling (as well as a link to the ruling):

In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter....

A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.

A link to NACDL's Formal Opinion 12-02 is available here.

A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here

August 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, August 20, 2014

Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft

Images (2)Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:

The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.  For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.

The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term.  Here is an excerpt from the heart of the opinion's analysis:

In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino.  There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons.  Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....

The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos.  We acknowledge that all fines serve the twin purposes of punishment and deterrence.  At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry.  The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....

[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses.  It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties.  However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them.  We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.

August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Detailing the significant increase in California lifers getting parole

This local article, headlined "Life with parole no longer means life term: Legal ruling causes steady rise in parole for California's lifers," highlights that parole has recently become a realistic possibility again for lifers in California. Here are the details:

Not so long ago, the conventional wisdom in legal circles was that any violent criminal sentenced to life with the possibility of parole in California wasn’t likely to ever walk out of prison. Whether that inmate had served the minimum on a term of 15 years to life or 25 years to life seemed inconsequential for many prisoners in the 1990s and early 2000s. In California, life meant life.

But that’s not the case anymore. In 2009, 221 lifer inmates were released from prison on parole, more than twice the number from the year before, according to the Governor’s Office. The numbers have steadily increased since then, reaching a high of 596 lifer inmates released on parole last year.

More than 2,200 inmates who had been serving life sentences in California have been paroled over the past five years, which is more than three times the number of lifers paroled in each of the previous 19 years combined.

Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.

Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown....

The spike in paroles came during Arnold Schwarzenegger’s term as governor, when the state’s high court established the standard by which a prisoner could be determined suitable for parole. Schwarzenegger, who was governor from 2003 to 2011, reversed more than 1,100 lifer parole grants during his time in office. One of them involved Sandra Davis Lawrence, who killed her lover’s wife in 1971. Her case went to trial in 1983. She was convicted of first-degree murder and sentenced to life in prison.

The Board of Parole Hearings determined in 2005 that Lawrence was suitable for parole based on several factors, including her efforts to rehabilitate herself in prison, her acceptance of responsibility for her crime and her close ties to her family. But Schwarzenegger found that Lawrence was not a good candidate for release based on “the gravity of the commitment offense,” according to court documents.

A three-judge panel of the state Supreme Court said that’s not good enough, explaining that parole could not be denied simply because the inmate’s offense was “heinous” or “cruel.” The key factor is whether that person remains a danger at the time parole is considered. “There has to be something more than just your crime was particularly atrocious,” said Jennifer Shaffer, executive officer of the Board of Parole Hearings. Denial can’t be based on “something you can’t change,” she said.

When the board denies parole for an inmate, that decision can be appealed, which results in a court-ordered hearing. In 2009, the first full year after the ruling, there were 263 court-ordered hearings spurred by appeals. “That is basically the court saying, ‘You got it wrong,’” she said. Last year, there were only 13 court-ordered hearings, which Shaffer said indicated the board had learned over time how to do a better job of applying the new standard. “The board, as a whole, learned with a lot of guidance from the court,” she said.

The Board of Parole Hearings issued 670 parole grants in 2012, and 590 in 2013, but some of those offenders may still be behind bars. Depending on factors specific to each case, it could take five months to several years for each prisoner to actually be released. State law bars the board from taking prison overcrowding into account when making its decisions. However, Shaffer said, there may be a perception that the issues are related because of the state’s efforts to comply with the federal court order.

August 20, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"15 years without an execution: the death penalty in Pennsylvania"

The title of this post is the headline of this local article highlighting Pennsylvania's remarkably long de facto moratorium on executions despite sending a significant number of murderers to death row." Here are the details:

Pennsylvania's Governor Tom Corbett has issued his thirty-sixth execution warrant. Michael Parrish, from Monroe County, is scheduled for execution in October after being convicted of killing his girlfriend and baby.

But according to experts, if the current trend continues, it could be decades before that ever happens. "Anyone who fights the death penalty today can go on for 15 to 25 years on death row," said Northampton County District Attorney John Morganelli.

Pennsylvania ranks fourth in the United States for the most people on death row. Close to 200 people currently have a death sentence, according to the Pennsylvania Department of Corrections. But the state has executed just three people in the last 35 years.

Morganelli said lengthy appeals are a factor, but not the sole, or biggest influence. "We have federal judges who constantly block these executions…It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty," Morganelli said. Other experts said overturned death sentences are also a reason.

Notably, Pennsylvania's modern experience with the death penalty seems somewhat comparable to what has transpired in California; the facts and factors in Pennsylvania thus seem similar to those stressed in Jones v. Chappell, last month's controversial federal district court ruling that California's death penalty is unconstitutional under Eighth Amendment (basics here). I would think more than a few savvy defense lawyers representing death row defendants in Pennsylvania are likely adding Jones claims to their appeals.

Some related posts:

August 20, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, August 19, 2014

Washington appeals court strikes down sign-holding shaming sanction as statutorily unauthorized

Regular readers know I am always intrigued by novel punishments, especially in the form of shaming sanctions.  Consequently, I was pleased when a helpful reader altered me to a notable new Washington appellate court opinion striking down a notable shaming sanction.  Here is how the short opinion in Washington v. Button, No. 44036-9-II (Wash. App. Div. II Aug. 18, 2014) (available here), gets started:

Charlotte Ann Button appeals a sentence condition requiring her to stand on a street corner holding a sign stating, "I stole from kids. Charlotte Button."  Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign-holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign-holding condition from her judgment and sentence.

August 19, 2014 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Senator Whitehouse defends risk-assessment tools for some sentencing determinations

The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making.  Here is the full text of the published letter:  

In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism.  But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.

The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.

States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend.  That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves. 

Recent related posts:

August 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, August 15, 2014

"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"

The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler.  Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon.  Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.  Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked.  As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.

The use of the pardon power is a necessary element in a fully-functioning system of criminal law.  Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.  This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.  Specifically, we advocate for the creation of an independent commission with a standing, diverse membership.  While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House.  This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool.  An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.  It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position.  This is the time to create a better machine of mercy.

August 15, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, August 14, 2014

Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable

In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:

We conclude that the district court imposed a substantively unreasonable sentence in this case.  Dautovic’s offense conduct was egregious.  A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes.  At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury.  Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified.  A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings atsentencing were consistent with the jury’s verdict.  The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months.  The district court found that Dautovic overreacted during the arrest and beating of Bonds.  It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count.  It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family.  The district court acted within its discretion when it decided to vary downward based on Dautovic’s history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.

The district court’s justification for the variance fails to support the degree of the variance in this case.  To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic’s sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic’s....  Dautovic’s offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury.  Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient.  The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, August 12, 2014

"Waking the Furman Giant"

The title of this post is the title of this notable and timely new article by Sam Kamin and Justin F. Marceau available via SSRN. Here is the abstract:

In its 1972 Furman v. Georgia decision, the Supreme Court — concerned that the death penalty was being imposed infrequently and without objectively measurable criteria — held that the penalty violated the Eighth Amendment to the Constitution. In the four decades since Furman there has been considerable Eighth Amendment litigation regarding capital punishment, but almost none of it has focused on the Court’s concern with arbitrariness and infrequency. But this may be about to change. With a growing body of quantitative data regarding the low death sentencing rates in several states, Furman is poised to return to center stage. While previous challenges attacked the form of various state capital statutes, new empirical data is leading condemned inmates to challenge the application of state sentencing statutes.

This article announces the return of Furman — a splintered opinion that nonetheless remains binding precedent 42 years after it was decided — and provides a reading of that case that can guide courts as they consider the latest round of challenges to the application of capital punishment. A careful revisiting of Furman is necessary and overdue because the critical underpinnings of American death penalty jurisprudence — narrowing, eligibility, and individualization — are currently being conflated, or forgotten altogether by both courts and capital litigants. This Article, is a timely guidepost for the inevitable next wave of Furman litigation.

August 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, August 05, 2014

Another round of heated debate over guilt of executed Cameron Todd Willingham

CNN has this lengthy new article reviewing some new developments in the long-running debate over the prospect that Texas killed an innocent man when it executed Cameron Todd Willingham in February 2004.  Here are excerpts from the CNN piece:

More than a decade after his execution, Cameron Todd Willingham is still a pawn in the debate over the death penalty.

Opponents of capital punishment say Willingham's is a clear case of an inmate being wrongfully executed, while the original prosecutor and state of Texas have been steadfast in their assertion that Willingham should be no one's cause célèbre.

"Willingham was a psychopathic killer who murdered his three children," John H. Jackson, the former Navarro County prosecutor who handled the case in 1992, wrote in an e-mail. "He submitted to a polygraph with predictable results, he confessed the murders to his wife, the trial evidence established two prior incidents when he tried to kill his children in utero by vicious attacks on his wife."

Willingham was executed in February 2004 after being found guilty in an arson that killed his children, 2-year-old Amber and 1-year-old twins Karmon and Kameron.  His family has fought to have his name cleared ever since.

The Innocence Project filed a grievance Monday with the State Bar of Texas, asking that it investigate the now-retired prosecutor.  The grievance alleges Jackson "fabricated and concealed evidence," including documents indicating that a jailhouse informant received special treatment in exchange for his testimony, which Jackson and the informant both claimed was not true during the original trial....

A story in The Washington Post on Sunday, written by the Marshall Project, a journalistic group focusing on criminal justice matters, said Willingham's case is especially important to death penalty opponents because it could provide the first case showing "conclusively that an innocent man was put to death in the modern era of capital punishment."...

Appellate courts, including the Supreme Court, declined to stop Willingham's execution, yet in his final words, he claimed to be "an innocent man convicted of a crime I did not commit." Since his conviction, the science employed by investigators to determine that the fatal fire was an arson, as well as a post-conviction claim by his ex-wife, Stacy Kuykendall, that Willingham confessed to her, have been matters of debate.

The Marshall Project story reports that informant Johnny Webb, whose testimony was integral to convicting Willingham, now says he lied on the witness stand in exchange for favors from Jackson. The story also alleges that correspondence between Jackson and Johnny Webb indicate the two were in cahoots. Jackson told CNN the letters are being misconstrued....

Little seems certain in Willingham's case, outside the fact that death penalty opponents and proponents staunchly disagree over his guilt. Disagreement has been a mark of the case, as Willingham's own defense attorney told CNN in 2009 that he thought his client was guilty, while one of the jurors who convicted him expressed doubts.

Texas Gov. Rick Perry has defended his decision not to stay Willingham's execution, calling him a "monster." Meanwhile, Innocence Project Co-Director Barry Scheck said in the Monday news release that not only should the verdict be called into question, but so should the man who prosecuted Willingham.

The new Marshall Project report on the Willingham case is available at this link, and Kent Scheidegger at Crime & Consequences has collected his writing about the case in this new post.

August 5, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack