Wednesday, April 23, 2014

Round-up of some reactions to/reports on today's notable sentencing developments

My blogging cup runneth over today as I try to find time to read and process the Supreme Court's big child porn restitution in Paroline (basics here) and DOJ's new clemency guidelines (basics here).  Before I find time to share some of my reactions and perspectives (which may take a couple of days as I head on the road), I figured I can and should round-up here some of the reactions and perspectives of others of note:

Reactions to Paroline child porn restitution ruling:

Reactions to/reports on DOJ's new clemency guidelines:

April 23, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS splits the difference for child porn restitution awards in Paroline

The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.

Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.

April 23, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, April 14, 2014

Two notable circuit discussions of federal consequences of child porn production

I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production.  One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:

In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy.  The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals.  Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes.  Accordingly, we affirm.

The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:

Stanley Weems pleaded guilty to one count of producing child pornography.  See 18 U.S.C. § 2251(a).  His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse.  See id. § 2255(a).  The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million).  This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations?   As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation.  We therefore reverse the district court’s contrary conclusion.

April 14, 2014 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Thursday, March 06, 2014

"How to Lie with Rape Statistics: America's Hidden Rape Crisis"

The title of this post is the title of this intriguing new paper on SSRN authored by Corey Rayburn Yung. Here is the abstract:

During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime.  Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime.  The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint.

This study addresses how widespread the practice of undercounting rape is in police departments across the country.  Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection technique to determine which jurisdictions have substantial anomalies in their data.  Using this novel method to determine if other municipalities likely failed to report the true number of rape complaints made, I find significant undercounting of rape incidents by police departments across the country.  The results indicate that approximately 22% of the 210 studied police departments responsible for populations of at least 100,000 persons have substantial statistical irregularities in their rape data indicating considerable undercounting from 1995 to 2012.  Notably, the number of undercounting jurisdictions has increased by over 61% during the eighteen years studied.

Correcting the data to remove police undercounting by imputing data from highly correlated murder rates, the study conservatively estimates that 796,213 to 1,145,309 complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 to 2012.  Further, the corrected data reveal that the study period includes fifteen to eighteen of the highest rates of rape since tracking of the data began in 1930. Instead of experiencing the widely reported "great decline" in rape, America is in the midst of a hidden rape crisis.  Further, the techniques that conceal rape complaints deprioritize those cases so that police conduct little or no investigation. Consequently, police leave serial rapists, who constitute the overwhelming majority of rapists, free to attack more victims. Based upon the findings of this study, governments at all levels must revitalize efforts to combat the cloaked rise in sexual violence and the federal government must exercise greater oversight of the crime reporting process to ensure accuracy of the data provided.

March 6, 2014 in National and State Crime Data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, February 27, 2014

Victims' families laments Gov's execution moratorium in Washington

As reported in this local article, headlined "Families urge Inslee to reconsider death penalty moratorium," not everyone is content with Washington Gov. Jay Inslee's decision earlier this month to impose a moratorium on executions while he is governor (basics here):

Families of murder victims are urging Governor Inslee to reconsider his moratorium on the death penalty. They traveled to Olympia Wednesday to ask why the governor never consulted with them before making his decision.   State lawmakers are considering a bill to make sure the families' voices are heard. 

"I am here Governor Inslee and I've got to say I'm very surprised that you're not here looking at all these victims," said Sherry Shaver, whose daughter Talisha was killed by Dewayne Woods in 1996. "We're here to speak about this. Where are you Gov. Inslee?"  Woods was sentenced to death. But that sentence is on hold with the governor's stunning statement that he would not sign a death warrant as long as he's in office. 

"I never talked to the governor about this," said Jessie Ripley. Her mother Jane Hungerford-Trapp was killed in Tacoma by Cecil Davis. "The governor needs to look at each and every situation as if it was his family. As if he was a victim himself."...  

[A] bill (SB 6566) by State Sen. Steve O'Ban ... would enforce the idea that families of the victims need to be heard before any decision is made on whether to go ahead with an execution.  He said, "There can be no justice if the voices of the victims are not heard."

Lewis County prosecutor Jonathan Meyers said," (Inslee) disrespected the victims. They deserve closure. They deserve their voice to be heard and the decision he leveled silenced all of them." 

The bill got its first public hearing Wednesday.  Even if it were to pass, the sponsor admits it wouldn't negate the governor's decision.  However, it would be a mandate for future governor's to listen to families first and then make a decision.

Related prior post:

February 27, 2014 in Clemency and Pardons, Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Saturday, February 22, 2014

"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"

The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:

This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime.  Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims.  Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.

Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.

February 22, 2014 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, February 06, 2014

Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four

As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday.  Here are some of the latest details:

A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.

His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.

"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.

As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."

Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....

Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."

Prior related post:

February 6, 2014 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (12) | TrackBack

Sunday, February 02, 2014

"Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"

The title of this post is the headline of this interesting recent Cleveland Plain Dealer article highlighting a notable set of voices expressing a faith-based disinterest in completing the next scheduled execution in Ohio.  Here are the details:

Irene Allain and her family want to prevent condemned killer Gregory Lott's execution. And they're relying on their faith to do it. Allain is the daughter of John McGrath, the 82-year-old man Lott is convicted of killing a vicious attack in East Cleveland in July 1986. Nearly 28 years later, Lott is scheduled to die March 19 for the crime.  And Allain and her family are pushing that the sentence be changed from death to life in prison.

"Although it has been difficult for me to come to terms with how my father died, I do not agree with executing Gregory Lott," Allain wrote in an affidavit that Lott's attorneys are using to seek clemency for him. "I am a devout Catholic, as is my family.  I believe that life in prison is a just punishment for Gregory Lott. I believe his death sentence should be commuted to life imprisonment."

As the debate over the death penalty simmers in Ohio, most recently sparked by the drawn-out execution of Dennis McGuire earlier this month, McGrath's family members highlight the issue from a different perspective.  And they aren't alone.  A growing number of families of victims are urging courts to avoid using the death penalty as a punishment.

"There is an automatic assumption that victims' families want the death penalty, but that has been challenged in the past five to 10 years," said Scott Bass, the executive director of Murder Victims' Families for Reconciliation. "There is a rising number of victims' families who don't want the death penalty. For many, the death penalty adds 20 to 30 years to the trial. It prolongs the agony for families."

But not all families believe that. Take the relatives of Joy Stewart, the pregnant woman who was brutally attacked and killed by McGuire.  Her family, in a statement to reporters at the execution, said they have forgiven McGuire, "but that does not negate the need for him to pay for his actions. It's time -- past time -- for him to pay for what he did to my sister."

In the case of Lott, it is clear that McGrath's family wants him to remain in prison. "I don't want to put my imprimatur on a man's execution,'' said Jack McGrath, a grandson. "Much of this is because of my Roman Catholic faith.  When I first learned of this in 1986, I almost thought of taking matters into my own hands.  But time has healed our wounds. I don't believe in the death penalty because of my faith."...

In a letter to prosecutors before his trial, Lott admitted to the slaying and pleaded for a deal that would spare him the death penalty.  "I am ready and willing to go to court any day or time and take the 30 years," Lott wrote to prosecutors. "I beg that you would let me plead guilty to the murder.  I am very sorry and remorseful for what happened to Mr. McGrath.''

But the deal never came. Months later, a three-judge panel convicted him and him sentenced to die.  Lott's execution date has been pushed back twice after legal challenges, including one that accused Carmen Marino, then an assistant Cuyahoga County prosecutor, of failing to turn over evidence to defense attorneys.  A federal judge in 2007 rejected Lott's appeal.  Following other appeals, he was given a new execution date....

Jack McGrath, the grandson of the man Lott killed, said he has thought a good deal about revenge and spoke with a Catholic priest.  "Twenty-eight years ago, I felt very much like that," he said. "But there comes a point when you say to yourself, 'Can this guy be forgiven?' What has happened has happened. It's not my place to judge."

This story is substantively interesting because it involves family members of a murder victim making a forceful faith-based pitch for clemency. But it is also practically so interesting because it could give Ohio Governor John Kasich a very reasonable basis to grant the condemned murderer here a commutation to LWOP and thereby prevent the next six week being filled with huge legal fights over Ohio's two-drug execution protocol. Of course, those legal fights are inevitable whenever Ohio gets close to another execution, but the Gov and other Ohio officials might find it quite beneficial to have a few more months to gear up for these fights without a March execution date looming.

February 2, 2014 in Clemency and Pardons, Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, January 30, 2014

Diverse perspectives on victims having diverse perspectives on sentencing

Regular readers know I am a fan and supporter of giving crime victims the opportunity and right to have their voices heard throughout the sentencing process.  Some of the reasons why are effectively articulated in a recent post by Paul Cassell at The Volokh Conspiracy, "Why crime victims need their own voice in the criminal justice process." Here is an excerpt from the post responding to a common concern expressed by defense attorneys (and noting one of my own recent posts):

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key.  Doug Berman has made exactly this same point about U.S. v. Paroline & Amy, explaining in a recent post that shifting our focus away from purely punitive criminal justice responses is why he is cheering for Amy to win a complete victory before the Supreme Court.   My former law clerk and now federal defender, Benji McMurray, has expanded on this point at length in “The Mitigating Power of a Victim Focus at Sentencing,” 19 FED. SENT’ING RPTR. 125 (2006).

A notable example of the potential mitigating impact of victim input about sentencing is emerging in a Colorado capital case, about which Andrew Cohen has written in this notable new Atlantic piece headlined "When Victims Speak Up in Court — in Defense of the Criminals; A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son." Here is how the article starts:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases — judge, prosecutor, and defendant — now almost always resembles a quartet.  Victims have a voice — and they use it. All 50 states now allow some form of "victim impact statement" at sentencing.  Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact.  But these efforts almost always fail.  Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state?  What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son?  What responsibility does the prosecutor have in that case? What obligations do the courts have?  Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child.  Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer.  The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues.  But I haven't been able to find a single victims' right advocate who believes that's true.

Of course, it is not always (and perhaps not even often) that a victim's voice will be for realtive leniency, as this local news segment from Massachusetts highlights.  This piece is headlined "Victims' Families Want Tougher Sentencing For Juvenile Offenders," and it sets up recorded interviews this way:

The judicial system is designed to disregard emotion. Only the letter of the law matters. But a ruling handed down last week by the state Supreme Judicial Court stirred up a lot of emotion. Following the lead of the US Supreme Court, the SJC ruled mandatory life sentences for juvenile murderers are unconstitutional. The decision set the minimum time served at 15 years, and now the families of some murder victims are making an impassioned plea to keep those killers locked up longer.

January 30, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 20, 2014

Explaining why I am rooting so hard for "Amy" in Paroline

Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:

The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer.  Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy.  Of the several hundred incriminating images on Paroline's computer, just two were of Amy.

Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.

Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.

No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....

The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....

Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.

Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."

If upheld, the ruling would change the equation.  Courts would not have to determine exactly how much harm any one defendant caused Amy.  Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.

Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses.  As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution.  But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.

More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case.  This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses.  (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)    

In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society.  As she has explained:

[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter.  But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (40) | TrackBack

Monday, December 09, 2013

Ins't home confinement for only three months and a small fine insufficient punishment for a felony false imprisonment charge?

The question in the title of this post is my reaction to this new CNN report headlined "Ex-San Diego Mayor Bob Filner sentenced to home confinement, fines."  Here are the details:

Former San Diego Mayor Bob Filner was sentenced Monday to 90 days in home confinement, three years probation, and a series of fines totaling about $1500 as part of a plea deal.

The 71-year-old pleaded guilty in October to kissing or grabbing three women at campaign events or at City Hall -- one a felony false imprisonment charge, the other two misdemeanor battery charges.  The three women were among 19 who accused him of offensive behavior during his tenure as mayor and as a congressman....

GPS monitoring will track his whereabouts during his confinement.  He'll be allowed to go out for medical and therapy appointments, religious services, and meetings tied to his probation.  He'll also be allowed to leave his apartment but stay within the apartment complex....

[T]he prosecution said Filner's behavior harmed the women and the city. Referring to the three women as Jane Does 1, 2, and 3, the state said Filner humiliated, scared, embarrassed, sexualized and devalued them.  Prosecutors also noted that after taking part in two weeks of treatment earlier this year, Filner still denied his crimes "and insisted that he was the victim of a lynch mob."

Filner's attorneys said they did not dispute any of the facts stated by the prosecution. None of the victims chose to be in court for the sentencing.

The felony charge said Filner used force to restrain a woman at a fund-raising event March 6. The misdemeanor charges say he kissed a woman on the lips without her consent at City Hall on April 6 and grabbed a woman's buttock after she asked to have her picture taken with him at a rally on May 25....

Under the plea deal, which was announced in October, Filner would be prohibited from ever seeking or holding public office again, the attorney general's office said.  Filner also would not be able to vote, serve on a jury or own a firearm while on probation. Filner also will have to give up pension credit for his time in the mayor's office after March 6, the date of the first offense.

I am not intimately familiar with all the details of all the unlawful intimate and too-familiar behavior of the former mayor of San Diego. But the fact that this plea deal included a felony count proposed by state prosecutors and accepted by the state court judge suggests that many responsible folks think Filner should be foreover branded a felon. In light of that conclusion, I have a hard time seeing the "slap on the wrist" punishment here to be reasonably sufficient, especially if prosecutors had solid evidence that Filner abused more than a dozen women and that "Filner humiliated, scared, embarrassed, sexualized and devalued" his many victims.

I am not sure if this (seemingly too) lenient sentence for Filner was baked into the plea deal or the result of a sentencing judge not being too troubled by Filner's many crimes.  Whatever the reality, if the victims truly suffered the way the prosecutor asserted, I am sorry for them that they were not there to speak at Filner's sentencing and that their harm may seem disvaluaed by this outcome.  That said, perhaps many of Filner's victims are mostly interested in a huge tort payday, so maybe at least some of them are content with Filner having resources to pay them in a civil suit rather than a huge fine to the state as part of his punishment.

December 9, 2013 in Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, December 05, 2013

Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, December 02, 2013

Another preview of Paroline via the New York Times

As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January.  But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices.   Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography.  She was the child.  “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.  Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world.  They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them.  She has the notifications sent to her lawyer. There have been about 1,800 so far.  Her lawyer often files a request for restitution, as a 1994 law allows her to do.  Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars.  She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.  The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused.  Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything.  The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.  The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....

Mr. Paroline said the ruling was deeply unfair.  “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court.  Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”  She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much.  The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. 

A few prior posts on Paroline:

December 2, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, November 22, 2013

Gearing up for Paroline with a short "Child Pornography Restitution Update"

Through oral argument in the fascinating Supreme Court case of Paroline v. United States is still a couple months away, it is not too early to start thinking about the range of challenging issues restitution sentences for child porn downloading victims presents for the Justices.  One way to gear up, of course, is to review the parties opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page.

Another effective way to start gearing up would be to read this short piece available now on SSRN titled simply ""Child Pornography Restitution Update" and authored by Mary Leary and James Marsh (who represents a victim seeking restitution). Here is the abstract:

This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.

November 22, 2013 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, November 19, 2013

"Sex Trafficking Court Holds Hope for the Oft-Blamed"

The title of this post is the title of this notable short essay by Mary Leary now available via SSRN. Here is the abstract:

This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative.  This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services.  The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models.  Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits.  The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.

November 19, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Saturday, November 09, 2013

You be the federal judge: should everyone claiming to be a Whitey Bulger victim get to speak at sentencing?

The question in the title of this post is prompted by this new USA Today article discussing arguably the only legal uncertainty preceding this week's coming high-profile federal sentencing. Here is the background:

When a jury in August found Boston mob boss James "Whitey" Bulger guilty in 11 murders and 31 racketeering counts, the verdict left eight families hungering for more justice. Their loved ones' deaths, the jury found, couldn't be linked to Bulger.  Now, with Bulger's sentencing hearing coming up Nov. 13 at federal court in Boston, these frustrated survivors might get the last word. Prosecutors hope at least some of them will get to tell the court how Bulger victimized them.

That prospect, however, has at least one juror crying foul, defense attorneys pushing back and legal experts warning that such an uncommon procedure could backfire by strengthening Bulger's grounds for appeal.

Judge Denise Casper is considering a prosecution request to permit "all victims" to give impact statements at the upcoming hearing. It is "beyond dispute that the criminal enterprise was responsible for the murder of all the victims specified in the indictment," says an Oct. 11 prosecution filing with the court. "Thus … family members of the murder victims clearly have a right to be heard at Bulger's sentencing."

Bulger's attorneys have fired back, urging the court to "reject the United States Attorney's Office's invitation to disrupt the findings of the jury." Meanwhile, Bulger trial juror Janet Uhlar has asked the U.S. Senate Judiciary Committee to investigate what she calls "a threat to U.S. jurisprudence."

"The verdict we carefully, dutifully, and painfully deliberated is being mocked by the US Attorney's Office," Uhlar said in an email to USA Today. If all are permitted to speak despite the jury's findings, she said, "U.S. jurisprudence will be dealt a fatal blow."

Legal experts say Casper has discretion to permit a narrow or wide range of impact statements. They add that no matter who's permitted to speak, 84-year-old Bulger is all but certain to spend the remainder of his days in prison. Prosecutors are asking for two consecutive life sentences, plus five years, in accordance with sentencing guidelines.

To allow victim impact statements from those not linked to the defendant's crimes would be extremely rare, according to Michael Coyne, associate dean of Massachusetts School of Law in Andover, Mass. He's never seen a case where it's been permitted, he said, adding that it would potentially cast aspersions on the sentence. "The appeals court could end up sending it back to her for having made a mistake," Coyne said, if the higher court finds the sentencing hearing was improperly managed.

But Casper might be weighing competing factors, according to David Frank, editor of Massachusetts Lawyers Weekly, a newspaper that covers legal affairs in the commonwealth. Among the possible concerns: Be sure no one who might count as a Bulger victim in this super-complex racketeering case is denied an opportunity to speak. "By law, victims of crime have an absolute right to address the court before sentencing," Frank said. "The judge has a difficult decision to make" as she considers, in light of conspiracy and other racketeering findings, how to define who is and who isn't a Bulger victim.

If the prosecution prevails, the government's image might get a boost among those who were hurt, especially during the 1970s and 80s by Bulger's Winter Hill Gang, Coyne says. Such victims have long resented how the government did little to bring the gangsters to justice, instead taking bribes and agreeing to generous deals with Bulger associates.

Yet the price paid for such an open forum could include an impression that the court is being used for more than justice. "It would reduce the sentencing hearing, to large extent, to a circus," said Robert Bloom, a criminal procedure expert at Boston College Law School. "It has absolutely no meaning other than some sort of cathartic relief for some of the victims."

Candidly, I find both foolish and fantastical the comments asserting there could be big legal problems resulting from the victims of "acquitted conduct" getting a chance to speak at Bulger's sentencing.  As informed folks should know, under established Supreme Court doctrine (US v. Watts) acquitted conduct can be (and still regularly does get) used by federal judges to significantly increase a defendant's sentence on other counts.  Though I view U.S. jurisprudence allowing such sentence increases to be misguided, I do not see how our justice system will be "dealt a fatal blow" from simply letting "acquitted conduct" victims speak at sentencing.  And, given that Bulger is facing mandatory life terms, even if it were somehow a procedural error to let these "victims" speak at sentencing, I am certain that the First Circuit would consider any such error harmless.

Some recent related posts:

November 9, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, October 29, 2013

California judge now criticized by victim's family for marrying defendant after sentencing him to life

In this post from earlier this month, I highlighted a local story headlined "Judge sentences killer, performs wedding," involving a defendant having two notable (and surely life changing) experiences on one sentencing day.  This new story, headlined "San Diego judge criticized for officiating at wedding of killer," now provides this follow-up:

A San Diego judge is being criticized for officiating at the marriage of a convicted killer just minutes after sentencing him to prison. A lawyer representing the family of the defendant's victim has requested that Superior Court Judge Patricia Cookson apologize for officiating at the wedding just minutes after family members had testified "about the devastating impact (of) the murder of their loved one."

Cookson sentenced Danna Desbrow, 36, of Lemon Grove to 53 years to life in prison for his conviction in the killing of Kevin Santos. After having the courtroom cleared of members of the Santos family, Cookson then married Desbrow and his longtime girlfriend at the latter's request. The judge also provided the couple with slices of cake, but it is unclear whether she baked it herself.

The incident, which occurred in the East County branch of the court, was reported Sept. 30 by the U-T San Diego. The newspaper last night posted on its website a letter to Cookson from attorney Paul Kamenar, representing the Santos family.

Cookson, 60, a former deputy district attorney and a judge since 1992, has declined to discuss the incident with reporters or the Santos family.

In his letter, Kamenar told Cookson that her conduct has caused "emotional pain" to the Santos family and "clearly violated" judicial ethics that call for judges to avoid "undermining public confidence in the integrity and impartiality of the judiciary." The Santos family did not know of the wedding until reading about it in the newspaper, Kamenar said.

"You stepped down from the bench, Bible in hand, and performed a full ceremony in your judicial robes, while the defendant was uncuffed, thereby putting yourself and court personnel in danger," according to the letter.

October 29, 2013 in Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, October 21, 2013

SCOTUS grants cert on federal restitution and state Atkins application cases

I was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog.  But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored.  Here is the early report on these latest grants via SCOTUSblog:

The Supreme Court moved on Monday to settle a long-lingering issue: the legal standard for judging whether a person is too retarded mentally to be executed for a murder.  That is the issue in Hall v. Florida (docket 12-10882).  The Court also agreed to hear a second case, on the scope of restitution as a penalty for bank loan fraud.  That is the issue in Robers v. U.S. (12-9012).....

The new death penalty case from Florida raised this issue: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.”  In that 2002 decision, the Supreme Court had ruled that it is unconstitutional under the Eighth Amendment to execute individuals who are found to be mentally retarded.  The Court, however, left it to the states to decide who is mentally retarded and thus cannot be given the death penalty.

In the new case, attorneys for Freddie Lee Hall contended that Florida courts have adopted a “bright line” rule that a person is not mentally retarded unless their IQ falls below 70.  The state Supreme Court found that Hall had an IQ of 71.  In an earlier stage of Hall’s case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.

The Hall case is certain to get lots of attention, and perhaps justifiably so.  That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court).  And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states. 

Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute.  Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar  bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.

As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention.  In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges.  Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.

October 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 16, 2013

Intriguing controversy over victim involvement in Whitey Bulger sentencing

This new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month.  Here are the details:

Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.

The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.

On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.

“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.

It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....

There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.

This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence.  But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims.  For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.

October 16, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 11, 2013

Controlled Substances # 5: Are Drug Crimes “Victimless”?

31-cEIG37XL._SL500_AA300_Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

My last post touched on some of the legal and policy questions that come with investigating crimes where there is no complaining witness.  The absence of a complaining witness leads some to refer to drug crimes as “victimless.”  This description is accurate in the narrow sense that parties to a drug transaction don’t have an incentive to report the crime to the police. 

But does that fact have any moral relevance?

Drug prohibition offers a great platform for examining the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be against the law.  By contrast, a number of theorists, policy analysts, and (I’ve found) law students believe that the criminalization of some or all drugs is unjust and/or unworkable.  Of course, many others think that punishing drug manufacture, use and sale is a moral imperative. 

The diversity of student views on drug prohibition can make for some very fun and rewarding classroom discussion.  The second chapter of my casebook focuses on this debate, with materials that mix the theoretical with the real world.

The book divides coverage into two sections, roughly tracking deontological and consequentialist arguments.  The first section (which I’ll focus on in this post) engages the “victimless” crime debate and asks whether drug criminalization is just.  The second section asks whether drug criminalization works. 

I try to draw students into the “victimless” crime debate with a 2011 case — Wisconsin v. Hoseman — that presents the issue in an engaging and, I think, somewhat unexpected setting.  The case centers on a marijuana grower who was thoughtless in more ways than one.  Hoseman rented an 1885 Victorian home and converted it into a six-figure marijuana business.  But there was one problem for Hoseman.  Apparently between tending to the plants and selling the product, he forgot to pay the rent! 

After several months, the home’s owner flew back to Wisconsin from Las Vegas (where he was living) with plans to start an eviction action.  Once the owner discovered Hoseman’s marijuana grow operation, however, he decided to call the police instead.  Hoseman was convicted of manufacturing marijuana and ordered to pay the home’s owner over $100,000 pursuant to Wisconsin’s victim restitution statute. 

Despite overwhelming evidence of damage to the home, Hoseman argued that marijuana manufacture is a “victimless” crime and that the home’s owner was not a “victim” as the term is defined in Wisconsin’s restitution statute.

Hoseman isn’t a very sympathetic character.  And, not surprisingly, the Court disposed of his arguments in short order, reaching the “inescapable conclusion that the actions taken in furtherance of the conspiracy to manufacture marijuana caused the damage to the resident.”

The case poses a real challenge for students who believe that drug crimes are victimless.  Sure, Hoseman’s customers aren’t likely to call the police, but that doesn’t mean he isn’t causing harm to others.  In this case, there’s no doubt that Hoseman’s marijuana operation harmed the owner of the Victorian home.  In other cases, a drug user may harm their child through neglect.  With all these victims, how can anyone say that drug crimes are “victimless” with a straight face?

After I present students with this take on things, I try to lead them to a possible counter-argument: the home’s owner was a victim of “vandalism,” not a victim of “marijuana manufacture.”  It certainly would have been possible for Hoseman to grow marijuana without damaging the Burbeys’ home by, for example, growing a smaller number of plants or designing his operation with greater care.  Similarly, Hoseman could have caused just as much damage to the Burbeys’ home if he had grown a legal plant (say, tomatoes) in the same fashion as he had grown the marijuana.   

This discussion of Hoseman nicely sets up the deeper examination of these issues that follows, relying on more theoretical materials including the obligatory excerpt of On Liberty, as well as excerpts from articles by Bernard Harcourt, Doug Husak, Steven Calabresi, and Dan Kahan.

I always find these class sessions to be some of the most enjoyable in the course.  But they can also be the toughest.  Many students will come to this debate with firmly held views that are often driven by personal experiences (from a bad encounter with the police to seeing a loved one struggle with addiction.)  For that reason, when I teach this material, my goal is always to try and gently challenge the students to better understand and critically reassess their own beliefs.

Prior post in series:

September 11, 2013 in Guest blogging by Professor Alex Kreit, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (15) | TrackBack