Sentencing Law and Policy

Murder victims' son seeking to advocate against death penalty

A helpful reader forwarded to me this interesting story out of California, which is headlined "Don't execute killer, slain El Cerrito couple's son says."  Here is the start of the piece:

The 20-year-old son of a slain El Cerrito couple is fighting to speak against imposing the death penalty on the uncle who killed his parents, testing for the first time a state law that gave crime victims a greater voice in legal proceedings.

Eric Rogers is scheduled to testify for the prosecution next week during the penalty phase of the murder trial of Edward Wycoff, a 40-year-old Sacramento County truck driver convicted Monday of two counts of first-degree murder for killing his sister and brother-in-law, Paul and Julie Rogers, on Jan. 31, 2006.

While legal precedent limits Eric Rogers to testifying only to the impact the murders have had on his life, Rogers said he wants to tell jurors that he doesn't want Wycoff executed.  His parents were strongly opposed to the death penalty, as is he, he said. "I think revenge would bring me closer to the status of my uncle and further from the status of my parents," Eric Rogers told the Times.  "To be vengeful in their name would be disrespectful."

Rogers hired Berkeley attorney Ted Cassman to argue that he has a right to voice his opposition to capital punishment under Marsy's Law, also known as Proposition 9 or the Victim's Rights and Protection Act of 2008, which voters approved last November.  Marsy's Law gives victims the right to be heard at any legal proceeding.  Beyond Rogers' belief that the death penalty is wrong, such a sentence would cause Rogers more pain by subjecting him to 10 to 20 years of appeals on Wycoff's behalf, Cassman said.

Wycoff prosecutor, Mark Peterson, argues that case law states that jurors need to decide whether a defendant deserves death, not how a death sentence would impact others.

Effective new opinion discussing restitution in federal child porn possession cases

I posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn.  Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):

It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)

A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation.  See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction.  See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009).  Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.  See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009).  Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount.  See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....

It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm.  The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.

Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images.  The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims.  In fact, there is no mention of Mr. Berk at all....

Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.

Download Berk ruling on CP Restitution

Some related recent federal child porn prosecution and sentencing posts:

• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases

UPDATE:  A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:

Download Amended Order on Restitution in Berk

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases
• Judge Adelman operationalizes deconstructed child porn guidelines
• Effective review of federal uptick in child-porn prosecutions

"Victim’s letter lessens attacker’s prison sentence"

The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:

A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.

Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time.  He wasn't bitter, and had compassion for his attackers.  "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...

Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison.  According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.

Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand.  On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:

I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony.  She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time.  Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried.  Instead, she is a footnote in all the commentary, on both sides.  No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.

Interesting debate over judge's questions to rape victim at sentencing

Thanks to Scott at Grits for Breakfast, I have learned of an interesting debate over how a Texas state judge at sentencing questioned a rape victim.  Here are some links to the story and reactions:

• From the Houston Chronicle here: "After rapist convicted, judge grills the victim"
• From Grits here, "Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about you"

These stories raise broader questions about the procedures that are used and should be used when victims are involved in the sentencing process.  Because nearly all sentencing proceedings take place in front of the sentencing judge, rarely are the formalities of the adversarial system followed (and, of course, many constitutional and statutory rules applicable at trial do not even apply at sentencing).  But, as this story highlights, victims may be surprised and troubled when judges get directly involved in asking probing and challenging questions concerning the nature of the offense.

NBA's crooked ref results in interesting restitution ruling from Second Circuit

The Second Circuit today has an interesting ruling on restitution awards in US v. Battista, No. 08-3750 (2d Cir. Aug. 6, 2009) (available here).  Here is how it starts:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association (“NBA”) gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution.  The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses.  Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.

Intriguing Sixth Circuit ruling on victim access to PSR

A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private.  Here is how the interesting opinion gets started:

This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants.  Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs).  The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him.  The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages.  Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them.  The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context.  But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.

Bernie Madoff's many victims vent in letters to sentencing judge

As detailed in this New York Times article, headlined "Fraud Victims Want Maximum for Madoff," some victim of Bernie Madoff's ponzi scheme have had a chance to tell his sentencing judge what they think ought to happen to their least-favorite white-collar criminal.  Here are a few details:

They are widows, retired schoolteachers, electrical contractors and Korean War veterans. Most had a strong message for the judge in charge of sentencing Bernard L. Madoff: impose the maximum sentence allowable by law.

In more than 100 letters and e-mail messages to Judge Denny Chin, victims of Mr. Madoff’s $65 billion Ponzi scheme described how their lives had been forever changed by the actions of a man they had trusted.

The letters, sent to the Federal District Court in Manhattan and released to the public on Monday, come ahead of Mr. Madoff’s sentencing on June 29.  Eight of the victims, including one who has known Mr. Madoff personally for more than 20 years, asked Judge Chin for permission to speak at the sentencing.

More than two-thirds of the victims who wrote to the court were retirees or children of retirees who invested with Mr. Madoff more than a decade ago. Many said they had been forced to move in with relatives or look for jobs.  Several letters expressed dismay with the Securities and Exchange Commission for failing to discover the fraud after being tipped off numerous times.

Many were brimming with anger directed at Mr. Madoff.  “Sentence this monster named Madoff to the most severe punishment within your abilities,” wrote Randy Baird, a California lawyer.  “We are too old to make up what we lost. We have to start over.”...

Some took issue with the portrayal of the fraud’s victims in the news media as being among the wealthy and privileged.  “Many Madoff victims are elderly individuals or retirees who were saving for the future and they had the misfortune to believe in a powerful Wall Street insider who was repeatedly investigated and given a clean bill of health,” wrote Emma De Vito, 81, a widow from Chalfont, Pa., who lost her entire life savings to Mr. Madoff.

Scholarly concerns about the CVRA

Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act.  But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration.  Here is the abstract:

The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution.  Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants.  Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case.  Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion.  Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant.  An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.

Another example of victim calling for a reduced sentence

Regular readers know I like to spotlight cases in which a crime victim has been a voice for sentencing leniency rather than toughness.  This new article from the Philadelphia Inquirer, headlined "Victim's forgiveness keeps embezzler out of prison," provides another example.  Here are the deatils from the start of the article:

Elizabeth "Betty" Greenawalt embezzled more than $900,000 from her long-time employer and neighbor, robbing him of money that he could have taken into his retirement.  Ralph Bucci went to Delaware County Court yesterday for Greenawalt's sentencing. Instead of seeking revenge, he offered forgiveness. "I do not seek a prison sentence on my behalf," Bucci told Judge James F. Nilon Jr.

Joan Bucci, his wife, called it a difficult day for her.  She mentioned Greenawalt's gambling addiction and said Greenawalt's actions had hurt the family emotionally and financially.  The Buccis' two daughters and son also testified that they had no desire to see Greenawalt go to prison, and that they also forgave her.

Greenawalt, who turned 66 yesterday, is in remission from Stage IV ovarian cancer.  She was sentenced to nine months of house arrest and more than 19 years of probation, and ordered to pay approximately $636,000 in restitution and serve 300 hours of community service.

"Is Crime Victims Rights Law Being Misused in Environmental Cases?"

The question in the title of this post is the headline of this new piece in The National Law Journal.  Here is how the effective piece begins:

A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.

It is interesting and notable that this question is being asked right in the middle of National Crime Victims’ Rights Week.  As detailed in this new press release from the White House, President Obama has called upon all Americans "to observe this week by participating in events that raise awareness of victims' rights and services and by volunteering to serve victims in their time of need."  I suppose that this NLJ article in some ways satisfies this call.

A victim's perspective on a possible plea deal for Bernie Madoff

This ABC News article provide an effective victim-centered perspective on the developing new that Bernie Madoff may be nearing a plea deal in his prosecution for his record-setting frauds.  The piece is headlined " Calling All Victims: Madoff Expected to Plead Guilty; Criminal Case of the $50 Billion Fraudster Nearing Conclusion," and here are some notable excerpts:

In the government's clearest statement yet that a deal in the criminal case of Bernard Madoff is close to being made, a victims' rights motion was filed Friday evening by the U.S. attorney in the case that indicates Madoff will appear next Thursday in a plea proceeding.

U.S. District Court Judge Denny Chin signed an order granting a request that the thousands of victims of the alleged Ponzi scheme will receive online notification of the court proceedings. They will have to periodically check a special web site set up for the criminal case proceedings.

Any victim who wishes to be heard in Thursday's proceeding will need to notify the government by Wednesday March 11th at 10:00 a.m. The internet address for victims to contact is: usanys.madoff@usdoj.gov....

It was reveleaed Friday that federal prosecutors have apparently reached a plea deal with the accused con man, in which he will admit to his role in the biggest financial crime in American history. The deal does not specify how much time Madoff would spend in prison, nor does it exclude the prosecution of Madoff's family or former associates, lawyers familiar with case said.

One former federal prosecutor says he doubts the deal will go easy on Madoff and that the disgraced financier will be spending a long time behind bars. "I doubt very seriously whether there would be any concession by the government as to jail time or diminished jail time for Mr. Madoff," said Sean O'Shea. "Given the sentencing guidelines in a fraud of this type, I think you're looking at a man who is 70 years old, I think you're looking at the rest of his natural life."...

Madoff's investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.

"It's not enough" for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. "That's what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children." Von Anhalt also wants to see Madoff's wife, Ruth, and his sons arrested and put in jail. "What nerve she has, to say that she wants to keep all that money. That's our money! Screw her!"

For more details on the possible plea deal, Mark Hamblett at the New York Law Journal has this article, headlined "Madoff Waives Indictment, Set to Plead Guilty."

New CVRA circuit filing in big environmental case

Anyone interested in crime victims rights and the scope and application of the federal Crime Victims' Rights Act will want to keep a close eye on the high-profile environmental case involving the the criminal trial of W.R. Grace in Montana.  As detailed in this post, titled "Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution," former federal judge Paul Cassell is taking to the Ninth Circuit this mandamus petition arguing that the district court unduly limited the reach of who qualifies as a victim under the CVRA.

As regular readers know, the the Crime Victims' Rights Act calls upon the court of appeals to "take up and decide such application forthwith within 72 hours after the petition has been filed."  In other words, it would appear that the Ninth Circuit has to rule on this matter before the end of this week! 

Notable AWA and CVRA rulings

Thanks to the fine bloggers at The Volokh Conspiracy, I can cover two interesting rulings under two interesting federal criminal statutes by links to their posts:

• By Paul Cassell here, "Crime Victim's Victory in the Sixth Circuit"

• By Eugene Volokh here, "Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional"

Eleventh Circuit grants mandamus in CVRA case

The Eleventh Circuit issued late today an important CVRA ruling with a short opinion in In Re: Janice W. Stewart And Other Borrower-Crime Victims, No. 08-16753-G (11th Cir. Dec. 19, 2008) (available here).  Here is how the opinion starts:

The Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime. The CVRA requires the Government to “make [its] best efforts to see” that the court (in which the prosecution is pending) permits the victim to appear and be heard.  If the court refuses to allow the victim to appear, the victim may move the United States Court of Appeals for a writ of mandamus.

Several persons claiming to be victims of the crime charged in United States v. Coon, No. 08-CR-441-T-17MAP (M.D. Fla.), moved the magistrate judge – as he was entertaining, and conditionally accepting, the defendant Phillip Coon’s guilty plea pursuant to an information and a plea agreement – for leave to appear in the case and to be heard.  The magistrate judge refused to recognize the movants as victims, and denied their motion.  The district court subsequently adhered to the magistrate judge’s ruling. The movants (“petitioners”) now petition this court for a writ of mandamus.  We grant the writ.

UPDATE:  Paul Cassell, who helped represent the petitioners in this case, discusses the Eleventh Circuit's ruling in this post at The Volokh Conspiracy.  Commentors over there spotlight some reasonable concerns about broad application of the CVRA in economic crime settings.

Another notable CVRA mandamus petition to watch

I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:

Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process.  The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him.  The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.

The lengthy petition is available at this link.  Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008."  I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).

I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision.  By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week. 

Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit).  But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.

How big is the risk that victim videos are more prejudicial than probative?

This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:

Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors.  Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993.  The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes.  With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos. 

Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief).  I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.

An example of homicide victim's family asking for sentencing leniency

The Supreme Court's disinclination to consider a pair of victim impact capital cases (basics here) has already prompted some commentors to complain about victims having a role in the criminal justice system.  But this local story from Utah provides yet another example of how victims can often be a voice for sentencing leniency even when the defendant is facing homicide charges:

Driving while talking on a cell phone is a dangerous mix for one mom. "Oh it breaks my heart,” said Linda Mulkey. “It’s such a dangerous habit."

Mulkey knows first hand about the consequences of a distracted driver.  She lost her only daughter in a car accident. 18 months ago, Lauren Mulkey just graduated from East High.  She died when Theodore Jorgensen ran a red light while fidgeting with his cell phone. "You don't get over losing a child,” said Mulkey. “You just learn to deal with the pain. It hurts everyday. My whole future is wiped out."

But Monday in court, Mulkey had the courage to forgive Jorgensen.  The 20-year old pleaded guilty to negligent homicide and faced sentencing.  But Mulkey asked the judge that she didn’t want him serving at prison time.  “It just didn’t make any sense,” she said.  Instead, she asked that Jorgensen be required to do community service.

In court, Jorgensen apologized to Mulkey. He turned to face her and said "I'm sorry for the pain I've caused."

“It took me a long time to reach this point,” she said. “But the more I saw him in court I realized he was a young scared man who had loving parents and I didn’t see any point in him sitting in jail.”

The judge agreed placing Jorgensen on probation and ordering him to do 500 hours of community service. “I’m hoping we can make joint appearances at schools,” she said. “His story and my story would make powerful messages to students.”

Some related posts:

• A telling example of a victim prompting a lighter sentence
• Shaming, remorse, apologies and victims
• Fascinating case about victim rights at sentencing
• Are victims' rights at sentencing a distinctively Muslim concern?
• Pondering a victim's role in sentencing
• More on victims at sentencing
• SCJC symposium on "The Victim in Criminal Justice"
• FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
• FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA

Worth reading from the Duke Law Journal

Thanks to the law review TOCs at Concurring Opinions, I saw that the Duke Law Journal has a new article and two new notes worth checking out:

• Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences

• Victims' Rights in an Adversary System

• The Newest Spectator Sport: Why Extending Victims' Rights to the Spectators' Gallery Erodes the Presumption of Innocence

Cert petition on video victim impact evidence

This new post at SCOTUSblog discusses a very interesting case coming to the Supreme Court concerning victim impact evidence.  Here is the start of the post:

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.