Sentencing Law and Policy

Great coverage of Fifth Circuit CVRA ruling in BP case

The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here).  Here are excerpts from the article:

A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table.  The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.

"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....

In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more.  The plea agreement must be accepted by a judge to be final and that has not yet happened....

The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004.  They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....

Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act.  "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....

The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said.  "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."

Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals.  In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.

Notable CVRA ruling from Fifth Circuit in BP case

Though apparently not yet posted on the Fifth Circuit website, a friendly reader sent me a copy of the Circuit notable decision today concerning the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (available for download below). Here is the start of the opinion:

In the related criminal proceeding, twelve of the victims asked the district court to reject the plea agreement, alleging violations of the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. The district court denied the request. See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008).  The victims petition for writ of mandamus with the prayer that “[t]he decision of the district court should be reversed and the case remanded with instructions that the plea agreement [not be] accepted and the parties are permitted to proceed as they determine --- so long as it is in a way that respects crime victims’ rights.” We find a statutory violation but, for reasons we explain, we deny relief.

Download cvra_dean_opinion_from_5th_circuit.pdf

There is a lot packed into only eight pages in Dean, and thus I may need some times and future posts to comments on what this ruling could mean (and whether it might be SCOTUS material).

Second Circuit rejects sundry challenges to CVRA

The Second Circuit this morning issues an intriguing little opinion in USA v. Eberhard, No. 05-3431 (2d Cir. May 5, 2008) (available here), which rejects a number of constitutional challenges to the Crime Victims Rights Act.  Here is one sentence that highlights the to-the-point character of the opinion in Eberhard: "A law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause."

Victim rights amendments on Oregon ballot

This local AP article spotlights that criminal justice fans should be interested in the Oregon primary for reasons beyond the one that will be covered by most of the media:

Crime victims and their families could play a bigger role in trials and sentencing under two statewide measures on the May 20 ballot.

Measures 51 and 52 essentially make the same changes to two different sections of the Oregon Constitution, including the crime victims' right to be present at key stages in a case and to be consulted about plea negotiations in some cases and to be heard at sentencing.  Many of those rights are already spelled out in Oregon law but lack enforcement provisions.  The measures would also grant the right of appeal for victims who claim their rights are denied.

Some related posts:

• SCJC symposium on "The Victim in Criminal Justice"
• A great event to gear up for National Crime Victims' Rights Week
• Fascinating case about victim rights at sentencing
• Are victims' rights at sentencing a distinctively Muslim concern?

Fascinating Eighth Circuit case on restitution

A somewhat amusing set of facts leads to an Eighth Circuit opinion today addressing a very interesting set of legal issues in US v. Chalupnik, No. 07-1355P (8th Cir. Feb. 1, 2008) (available here). Here is how the opinion starts:

BMG Columbia House (“BMG”) sells CDs and DVDs by mail. Many BMG discs prove to be undeliverable. During the time in question, BMG arranged with the United States Postal Service (“USPS”) to gather and discard undeliverable discs, as it was less costly for BMG to produce replacement discs than to pay for the return and restocking of undeliverable discs. James Chalupnik, a janitorial supervisor at the downtown post office in Fargo, North Dakota, took several thousand undeliverable CDs and DVDs from the post office trash and sold them to used record stores. Initially charged with felony mail theft, Chalupnik pleaded guilty to misdemeanor copyright infringement in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(3). The district court sentenced Chalupnik to two years probation and ordered him to pay -2- BMG restitution in an amount equal to his documented sales proceeds, $78,818. Chalupnik appeals the restitution award. We conclude that the government failed to prove the amount of loss to BMG proximately caused by Chalupnik’s offense. Accordingly, we vacate the restitution award and remand for resentencing.

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?