Thursday, June 27, 2013

SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts

As reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:

In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.

The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)

Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review.  But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing.  Here is how the Justices' teed-up the issue in Paroline for consideration next term:

The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.

I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.

Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography.  But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.  

Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline.  Will these lawyers get a chance to argue before SCOTUS in Paroline?  Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court?  Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?

June 27, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, June 26, 2013

By wishing for end to legal proceedings, are Ariel Castro's victims urging a plea deal and no death penalty trial?

The question in the title of this post is my reaction to this new story, headlined "'Sordid details': Ariel Castro's alleged kidnapping victims want case to be over," coming today from the high-profile Cleveland kidnapping case. Here are the basics: 

The three young women allegedly held captive for a decade in a Cleveland home where they were raped and tortured want to get the case to court as quickly as possible, their attorneys said on Wednesday, adding that they want “this whole thing behind them.”

Amanda Berry, Gina DeJesus and Michelle Knight escaped Castro’s home on May 6 after Berry broke through a front door and screamed to neighbors for help. “The longer this process lasts, the more painful it is for them. And the more sordid details of this horror that get disclosed in this process, the more painful it is for them,” attorney Kathy Joseph, who is representing Knight, said in a statement....

“Again, they have faith in the process, but the simple, honest truth is they would like it to be over,” said James Wooley, attorney for Berry and DeJesus. “They want this whole thing behind them. Any date by which this may end is like light at the end of a tunnel.”

Ariel Castro has pleaded not guilty to 329 charges including kidnapping and rape.  On Wednesday, Judge Michael Russo in Cuyahoga County ordered Castro to undergo a competency evaluation regarding his ability to understand the trial proceedings and work with his attorney. Castro spoke twice during the 10-minute pre-trial hearing on Wednesday, both times affirming that he understood the judge.

As everyone who follows capital cases should know well, the most certain way to ensure that the prosecution of Ariel Castro does not get resolved quickly would be for the District Attorney to serious pursue a death sentence and to refuse to engineer a plea deal including a lesser sentence.  I have to believe the victims and their attorneys understand this, and thus I also believe that these new statements on behalf of the victims are, in essence, a request to key prosecutors to get to work on a quick plea deal to bring a form of closure to the legal proceedings ASAP.

Recent related posts:

June 26, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, June 08, 2013

DOJ unveils new plans and programming for helping crime victims

V21Report_thumbnailAs reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century."  Here is more from the press release about this interesting and positive development:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not.  The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues.  It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage.  Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:

Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require access to legal services and professional legal representation at tribal, state, and federal levels.  CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”

The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court.  Funding for the OVC demonstration project ended in 2009.  Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed.  The full promise of CVRA was not realized, although the many legal issues facing crime victims remain.  Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.

June 8, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, May 08, 2013

Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?

Like perhaps many others, I have feelings ranging from horror to disgust to macabre interest as facts emerge from Cleveland concerning the many awful crimes committed on at least three young women for a decade.  This USA Today story provides just a small flavor of what the victims may have endured for years upon years upon years:

Cleveland police say they'll delay "deep questioning" of Amanda Berry, Gina DeJesus and Michelle Knight as they get acclimated to their families and freedom.  While the three appear to be in good health, a disturbing tale of sexual assault, physical abuse, bondage and other horrors is already emerging....

The Castro brothers allegedly forced all three women to have sex, resulting in up to five pregnancies, according to a report by Cleveland's WKYC-TV.  The station, quoting unnamed law enforcement sources, reported that the Castros also beat the women while they were pregnant, with several unborn children not surviving....

A law enforcement official said there is some evidence that the victims were held in chains during at least part of their captivity.  The official, who is not authorized to comment publicly, did not elaborate on other conditions of their confinement or whether they were ever moved from the home.

In addition, Khalid Samad, a former assistant safety director for the city, said law enforcement officials told him that the women were beaten while pregnant, with unborn children not surviving, and that a dungeon of sorts with chains was in the home.

I cannot help but wonder if the Supreme Court's decision to categorically precluding consideration of the death penalty for even repeat and aggravated child rape in its 2008 Kennedy opinion might well have come out differently had this horrific Cleveland story been known at that time.  Perhaps because I am a blood-thirsty SOB or just because I know what kind of justice I would want if someone abducted and sexual tortured my children in a dungeon for a decade, my guttural first sentencing thought in this case is some regret that a team of men who rape and torture young girls for over four presidential administrations cannot even face the prospect of our ultimate punishment for these kinds of crimes.

That said, as the title of my post here hints, Ohio law might provide a real and realistic basis to purpose a death penalty charge if there is significant evidence showing that the offenders, through physical abuse and forms of torture, "purposely ... cause[d] ... the unlawful termination of another's pregnancy."  If the defendants beat their victims with an intent to cause them to miscarry, they could well be prosecuted in Ohio with Aggravated Murder pursuant to Ohio Revised Code 2903.01(B)

Of course, a lot more facts are going to need to be known and analyzed before anyone should jump to the conclusion that capital murder charges are possible in this high-profile case.  But because Ohio's statutes expressly reference "unlawful termination of another's pregnancy," I would expect and certainly hope that local prosecutors are already thinking about bringing homicide charges as well as rape and kidnapping charges in this case.  Ohio's legislators, by having amended the state's Aggravated Murder provisions to expressly included purposely causing the unlawful termination of another's pregnancy, indicated an interest in the possibility that the "worst of the worst" sorts of "pregnancy terminators" should possibly face the death penalty.  Based on the facts so far known, I feel very comfortable asserting that the defendants in Cleveland are likely among the "worst of the worst" sorts of "pregnancy terminators."

May 8, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (26) | TrackBack

Tuesday, May 07, 2013

"The Case for Full Restitution for Child Pornography Victims"

The title of this post is the title of this new paper on SSRN co-authored by Paul Cassell, James Marsh and Jeremy Christiansen concerning an issue that has riven the federal circuit courts and seems destined for SCOTUS consideration before too long. Here is the abstract:

This Article explores the issues of restitution to the victims of child pornography and other federal sex offenses in depth and contends that Congress meant what it said in Section 2259 — specifically that child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them.  This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses.  Requiring defendants to pay for the full amount of the losses that they have caused will address the significant financial losses suffered by child pornography victims.

May 7, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Friday, May 03, 2013

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal  prosecution.  But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."  Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property.  Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses.  All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings.  I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case."  And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations.  But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many?  most?  all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table.  Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims.  Consequently, I fear that many (most?  all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA.  And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

Some related recent posts:

May 3, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, April 25, 2013

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

April 25, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, April 19, 2013

Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev

This CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody."  Here are the basic details as of late Friday night:

The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.

Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead.  The younger Tsarnaev was in need of undisclosed medical care, the officials said.

After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...

Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston.  Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....

The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....

A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012.  Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity.  He came "a few years later" and was lawfully in the United States as a green-card holder.

In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now.  I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.

Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev.  Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case."  But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev.  Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.

Related posts:

April 19, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (83) | TrackBack

Saturday, April 13, 2013

Florida (finally!!) carries out sentence for child killer who murdered during Carter Administration

As reported in this AP article, "Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces."  Here is more of the story:

Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980.  Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke.  He was 59.

The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal.  The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began.  There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them.

Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher.  He said she was a Girl Scout who would take in stray pets and donated money she earned to charity.  She was a cheerleader who loved to dance and sing.

Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County.  He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school.  He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base.

He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed."... Elisa's parents, David and Wendy Nelson, watched in silence.  Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.

Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.

In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid."  They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote.

While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals.  His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death.

Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days -- over three times her entire life -- making a mockery of our legal system," he said.

Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann....

While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.

Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."

Though I still remain a troubled agnostic on so many aspects of the modern death penalty, here I share the view of the murder victim's brother that this case ended up "making a mockery of our legal system." If factual guilt was in doubt or if this was a complicated crime implicating competing culpability issues concerning the proper sentence, I suppose I could understand why it might take a decade or more to sort out and then carry out this killer's punishment.  But it seems guilt was never in doubt and that the details of the crime and the killer's basic culpability were relatively clear from the outset.

In other words, it appears that the chief reason why final resolution of this case took over 32 years was because the legal system was eager to have a sentencing debate churn over and over and over again.  I have long believed that there ought to be a basic rule that provides that if a death sentence cannot be reviewed and upheld through all levels of appeal within 15 years, then it ought just become an LWOP sentence in order to save everyone the time and aggravation of the continued uncertainty and legal fighting over the difference a quicker (execution) or slower (LWOP) death sentence. Indeed, I think it is interesting to speculate whether the family of the murder victims in this case would have been able to better more on with their lives if in, say, 1995 it was simply decided that Larry Eugene Mann would just serve LWOP. (It is also interesting to speculate whether Larry Eugene Mann might have died before April 2013 if he had gotten an LWOP sentence from the outset instead of a death sentence which surely led to him getting a lot more attention from lawyers and courts throughout the last three decades.)

April 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (22) | TrackBack

Thursday, April 04, 2013

Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal

This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing.  The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned."  The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:

Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.

A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:

"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."

A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.

Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.

For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.

Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.

UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.

April 4, 2013 in Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 03, 2013

Some notable headlines in wake of state prosecutors' decision to seek death penalty for James Holmes

I was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:

From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"

From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"

From CNN here, "Why death penalty for Holmes wouldn't bring justice"

From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"

Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"

I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising.  But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.

Recent and older related posts (with lots of comments):

April 3, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, February 27, 2013

Sixth Circuit weighs in with instructions on restitution sentencing in child porn cases

A helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here).  Here is how the majority opinion gets started:

In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received.  Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases.  Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers.  Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.

Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:

I join all but part II.B of the Court’s thought ful opinion.  I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....

In determining the amount of a restitution award under § 2259, the courts can only do their best.  It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.

As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.

February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Monday, January 28, 2013

"Rethinking Restitution in Cases of Child Pornography Possession"

The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.

In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.

To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack

Sunday, January 27, 2013

Fascinating NY Times magazine cover story on child porn victims and restitution

27cover-sfSpanToday's New York Times magazine has this remarkable cover story headlined "The Price of a Stolen Childhood," which provides a fascinating profile of the two young women now at the center of legal disputes in federal courts nationwide over restitution sentences imposed upon defendants who download child pornography. The lengthy article has too many interesting facets to effectively summarize, but here is one snippet telling early parts of the legal aspects of the story:

Six months after [the first] sentencing [which included a restitution award in October 2008], [Amy's lawyer James] Marsh went after another child-pornography defendant, Arthur Staples, a 65-year-old sheriff’s deputy in Virginia, who had chatted online with an undercover detective and expressed an interest in young children. Staples sent one image of a young girl (not Amy), and he was caught with more than 600 pictures on his computer, including hers. Staples agreed not to appeal any sentence or restitution judgment. The judge sentenced him to 17½ years, and made the unusual move of ordering him to pay all of Amy’s claim. To Marsh’s surprise, Staples turned out to have $2 million in assets. He has since paid $1.2 million to Amy.  (Marsh says the government let Staples’s wife keep part of the estate.) While Amy has been turned down for restitution by some courts, which have stated that there was not enough proof that any one man who viewed her pictures was responsible for the harm she has suffered, she has won more than 150 cases, totaling $1.6 million. Most of the amounts aren’t large: $1,000 or even $100, paid out in checks as small as $7.33.

Nicole has also been pursuing restitution.  Her lawyer, Carol Hepburn, did her own research and got in touch with Marsh when she learned about the claims he was bringing for Amy. The two lawyers now collaborate on ideas and strategy, though they represent their clients separately. Since receiving her first check for $10,000, Nicole has collected more than $550,000, mostly in small amounts from 204 different men. So far only a few other child-pornography victims have gone to court for restitution. Many may not know there is a legal remedy; others don’t know their images have circulated....

Study after study links child sexual abuse to psychological trauma, addiction and violent relationships in adulthood. There is almost no research, however, that deals with the specifics of Amy and Nicole’s experiences: What additional harm comes from knowing that pictures of your childhood exploitation are circulating widely?

The Supreme Court actually addressed this question in its 1982 decision upholding child-pornography bans. “‘Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution,’” Justice Byron White wrote, quoting from a book about abused children. “‘Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.’”

David Finkelhor, a sociologist who directs the Crimes Against Children Research Center at the University of New Hampshire, sees the moral weight of the Supreme Court’s proclamation, but not the empirical proof.  “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself,” he told me. “How do you separate it out?”

Courts have disagreed on this question.  In at least a dozen cases, defendants have appealed restitution decisions and mostly won.  In five of those cases, federal appeals courts have expressed skepticism that Amy and Nicole should receive more than nominal restitution.  Two other appeals courts have allowed the young women to recover from individual defendants as members of the group of viewers but, so far, only for amounts of $10,000 or less. (Amy collected a far greater sum from Arthur Staples because he waived his right to appeal.)

January 27, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (35) | TrackBack

Saturday, January 05, 2013

"Can Forgiveness Play a Role in Criminal Justice?"

The title of this post is the headline of this fascinating article appearing in Sunday's New York Times Magazine.  The piece is about a sad Florida case in which a young man shot and killed his girlfriend and the role a restorative justice process used thereafter shaped the defendant's prosecution and sentencing.  There are lots of interesting passages in the full piece, and but this passage early in the piece caught my attention because of what it reveals about prosecutorial discretion and the distinct interests (and power) of some victims once they know the prosecutor's legal options:

“Unfortunately I have a lot of experience talking to the parents of dead people,” says Jack Campbell, the Leon County assistant state attorney who handles many of North Florida’s high-profile murder cases.  Sheriff’s deputies who were investigating the case told Campbell that the Grosmaires’ feelings toward the accused were unusual, but Campbell was not prepared for how their first meeting, two months after Ann’s death, would change the course of Conor’s prosecution.

Campbell had charged Conor with first-degree murder, which, as most people in Florida understand it, carries a mandatory life sentence or, potentially, the death penalty.  He told the Grosmaires that he wouldn’t seek capital punishment, because, as he told me later,  “I didn’t have aggravating circumstances like prior conviction, the victim being a child or the crime being particularly heinous and the like.”

As he always does with victims’ families, he explained to the Grosmaires the details of the criminal-justice process, including the little-advertised fact that the state attorney has broad discretion to depart from the state’s mandatory sentences.  As the representative of the state and the person tasked with finding justice for Ann, he could reduce charges and seek alternative sentences.  Technically, he told the Grosmaires, “if I wanted to do five years for manslaughter, I can do that.”

Kate [the mother of the murder victim] sat up straight and looked at Campbell.  “What?” she asked. Campbell, believing she had misunderstood and thought he was suggesting that Conor serve a prison term of just five years, tried to reassure her.  “No, no,” he said. “I would never do that.”  It was just an example of how much latitude Florida prosecutors have in a murder case.

What Campbell didn’t realize was that the Grosmaires didn’t want Conor to spend his life in prison.  The exchange in Campbell’s office turned their understanding of Conor’s situation upside down and gave them an unexpected challenge to grapple with.  “It was easy to think, Poor Conor, I wouldn’t want him to spend his life in prison, but he’s going to have to,” Kate says.  “Now Jack Campbell’s telling me he doesn’t have to.  So what are you going to do?”

“He’s so sorry he said that,” Kate says now, of Campbell.  “I mean, it opened the door for us.”

I urge readers, before clicking through to read the full New York Times piece, to consider what might have happened once a local prosecutor "opened the door" to a murder victim's family simply by telling them about the legal discretion he possessed to seek a more nuanced form of sentencing justice. I also welcome readers to opine on whether this story should be considered a vindication or violation of victims' rights given that the local prosecutor ultimately engineered a plea deal with a locked-in prison term that differed significantly from the sentence urged by the victim's family during the restorative justice "pre-plea" conference process.

January 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, December 04, 2012

"The Victims' Rights Amendment: A Sympathetic, Clause-by-Clause Analysis"

The title of this post is the title of this new paper by Paul Cassell available via SSRN.  Here is the abstract:

My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice.  In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments.  The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.

Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment.  Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions.  Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.

December 4, 2012 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 14, 2012

Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issues

The Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images.  Here is the final paragraph from the lengthy unanimous panel opinion:

To summarize: The defendant’s prison sentence is affirmed.  The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases.  The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images.  The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

November 14, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Thursday, November 08, 2012

Jared Loughner sentenced to seven consecutive life sentences plus 140 years

Largely because (and seemingly only because) federal prosecutors were willing to take the threat of a death penalty off the table, a very high-profile mass shooting in Arizona reach a sentencing result today less than two years after the crime.  This AP story, headlined "Life sentence in Ariz attack that wounded Giffords," reports on some of the basics:

Former Congresswoman Gabrielle Giffords, partially blind, her right arm paralyzed and limp, came face to face Thursday with the man who tried to kill her last year, standing beside her husband as he spoke of her struggles to recover from being shot in the head.

"Her life has been forever changed. Plans she had for our family and her career have been immeasurably altered," said astronaut Mark Kelly, both he and his wife staring at the shooter inside a packed courtroom. "Every day is a continuous struggle to do those things she once was so good at."

Jared Lee Loughner, 24, was then ordered to serve seven consecutive life sentences, plus 140 years in federal prison for the January 2011 shooting rampage that killed six people and wounded 13 others, including Giffords, outside a grocery store in Tucson, Ariz.

Loughner pleaded guilty under an agreement that guarantees he will spend the rest of his life in prison without the possibility of parole. He avoids a federal death sentence, although state prosecutors could still decide to try him.

One by one, survivors of the attack at a Giffords political event approached the courtroom podium to address Loughner, each turning toward him where he sat stoic and emotionless at a table with his attorneys. "You took away my life, my love and my reason for living," said Mavanell Stoddard, who was shot three times and cradled her dying husband in her arms as he lay bleeding on the sidewalk after shielding her from the spray of bullets.

Susan Hileman, who was shot, spoke to him, at times visibly shaking. "We've been told about your demons, about the illness that skewed your thinking," she said. "Your parents, your schools, your community, they all failed you. It's all true," Hileman said. "It's not enough."...

Some victims, including Giffords, welcomed the plea deal as a way to move on. It spared them and their families from having to go through a potentially lengthy and traumatic trial and locks up the defendant for life.

Giffords didn't speak, but stood by Kelly and kissed her husband when he was done. He grabbed her hand and they walked away, her limping. Earlier, Loughner told Burns that he would not speak at the hearing.

Both sides reached the deal after a judge declared that Loughner was able to understand the charges against him. After the shooting, he was diagnosed with schizophrenia and underwent forcible psychotropic drug treatments.

Christina Pietz, the court-appointed psychologist who treated Loughner, had warned that although Loughner was competent to plead guilty, he remained severely mentally ill and his condition could deteriorate under the stress of a trial....

It's unknown whether Pima County prosecutors, who have discretion on whether to seek the death penalty against Loughner, will file state charges against him. Stephanie Coronado, a spokeswoman for Pima County Attorney Barbara LaWall, said Wednesday that no decision had been made.

It's also unclear where Loughner will be sent to serve his federal sentence. He could return to a prison medical facility like the one in Springfield, Mo., where he's been treated for more than a year.  Or he could end up in a prison such as the federal lockup in Florence, Colo., that houses some of the country's most notorious criminals, including Oklahoma City bombing conspirator Terry Nichols and "Unabomber" Ted Kaczynski.

I am very interested to hear (especially from vocal death penalty advocate and opponents) whether folks think justice has now been served in this high-profile case. I am likewise interested to hear whether folks think Arizona prosecutors should now follow-up with state charges against Loughner.  

November 8, 2012 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, October 30, 2012

"A Theory of Criminal Victimization"

The title of this post is the title of this intriguing new paper by Joshua Kleinfeld now available via SSRN. Here is the abstract:

Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable.  We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same).  Yet this pattern in blame and punishment has been overlooked.  Criminal scholarship and moral philosophy have offered no theory by which to explain it.  And, lacking a theory, the pattern itself has been missed or misunderstood empirically.

This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence.  It shows the concept to be implicit in both the doctrine and practice of criminal law.  And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.

A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.

October 30, 2012 in Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Monday, October 01, 2012

En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases

The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:

The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.

This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....

For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion

The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.

October 1, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, August 29, 2012

"Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"

The title of this post is the headline of this lengthy and effective new article in the latest issue of the ABA Journal.  Here is a small excerpt from a piece that merits a full read for any and everyone concerned with issues surrounding child porn sentencing or restitution punishment:

Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...

The restitution portion of VAWA requires full compensation for victims’ losses, regardless of the defendant’s ability to pay. The D.C. Circuit noted this in April 2011 in U.S. v. Monzel, when it remanded a partial restitution order so the trial court could calculate “the full amount of the victim’s losses.”

However, the full-restitution requirement creates another problem with using VAWA in cases like Amy’s: how to split the restitution payment among all of the defendants who may be charged with possession of the same images. The act provides for joint and several liability among defendants in the same case, but what about defendants in multiple cases, in numbers nobody can predict? How should responsibility be apportioned between each of them, plus the original maker of the child pornography? And how can the justice system track what the victims actually receive?

Legal experts say there’s no precedent for these questions under VAWA or anywhere else in criminal law or in tort law. Several appeals courts have dedicated parts of their opinions to the problem, and federal district courts have struggled, with some developing a flat-rate scheme on their own. These include the Eastern District of California, which in three cases awarded $3,000 per victim, extrapolating from a provision in 18 USC § 2255 that minor victims of sexual exploitation may be deemed to have suffered civil damages no less than $150,000. In another case, a court in the Western District of Washington awarded $1,000 per image in U.S. v. Kennedy (later reduced to zero by the 9th Circuit at San Francisco).

Marsh says it’s his policy to file for full restitution—the full amount of Amy’s lost income, past and future psychiatric treatment, loss of enjoyment of life and attorney fees—in nearly every case, regardless of what other orders his client has received and regardless of the defendant’s means. He says Amy doesn’t care where the money comes from as long as she is made completely whole. He and Carol Hepburn of Seattle, Vicky’s attorney, argue that the system should not put the burden of working out these details on victims. Complicating matters further, Hepburn says, is the problem of collecting. “Just because an order is entered doesn’t mean one is going to get payment,” she points out. “In fact, I can remember early on a prosecutor telling me: ‘I got you a $10,000 order, but good luck getting anything because this guy’s going to get deported after he gets out of jail.’ ”

Even without immigration problems, defendants may have no money left after their defense, and no way of earning it while serving the long prison sentences typical in child pornography cases. Hepburn and Marsh say they receive some large checks as well as a few regular payments from prison wages. In some circumstances, particularly when the defendant is indigent, they may also work out arrangements with prosecutors or defense counsel.

August 29, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Friday, August 17, 2012

More on victims' perspectives and advocacy after SCOTUS Miller ruling

Today's Los Angeles Times has this interesting new piece headlined "Ruling on juvenile killers reopens wounds for victims' families: A Supreme Court decision that juvenile murderers with life sentences should have a chance at parole stirs old memories for relatives of victims; Some are preparing to fight back."  Here are excerpts:

Jose Vasquez remembers the night police officers came to his house and said his sister Tayde was dead. He remembers too the mornings escorting his mother to the trial in Long Beach, and their relief when the young killer was given life in prison with no parole.

Now, after 20 years, the Supreme Court has ruled that juvenile murderers with mandatory life sentences should have a chance at parole, a decision that has led many states to debate comparable legislation. On Thursday, the California Assembly passed a measure that someday could set free youthful offenders like Elizabeth Lozano, who was 16 when 13-year-old Tayde Vasquez was shot in the head.

For Tayde's family, that is like the knock at the door again. Preparing to fight back, they returned to the courthouse this summer, collecting old records and transcripts, and seeking out prosecutors.  They also have written prison officials asking to be told whether Lozano files a legal appeal, wins a parole hearing, escapes or dies. They are determined to keep her inside the California state prison in Chowchilla. "It's like it's all coming back again," Vasquez said.  "It's like a ghost hunting us down."...

In the United States, about 2,000 inmates are serving life with no parole for juvenile murder.  In California, there are 300 such offenders.  To get parole under the bill, likely to pass next week in the state Senate, they would first have to serve 25 years and then convince authorities that they regretted their past actions, have stayed out of trouble in prison and could be productive in society.

That is a very high bar.  Yet Lozano, now 37, has by all appearances turned her life around. She has excelled in academics, led prison fellowships and won accolades from the prison administration.

For the Vasquez family, that is not good enough.  Nor does it persuade victims' advocates like Maggie Elvey, whose husband was killed in 1993 by two youths in San Diego County. She said opponents would consider a lawsuit to stop enforcement if the bill became law. "You do it, that's it," she said of a life sentence.  "That's what you get."

Jennifer Bishop-Jenkins, whose pregnant sister and her husband were killed in 1990 by a 17-year-old in the Chicago suburb of Winnetka, worried that the court ruling would be emotionally devastating for her if she had to once more fight against a killer's release. After so many years, she said, case files might be missing, memories may have faded and witnesses long ago may have died.  "Everything we would need to arm ourselves might be lost," she said.  "Our ability to fight a parole hearing would be severely compromised."

Some states have found ways to get around the court's ruling. In Iowa, Republican Gov. Terry Branstad last month commuted sentences of life with no parole for all 38 juvenile murderers in his state, but he then made them eligible for parole only after they served 60 years.  A killer at age 15 would be 75 before he saw a parole board.

Some related recent posts on Miller and its impact on victims:

August 17, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (5) | TrackBack

Thursday, August 16, 2012

"What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"

The question in the title of this post comes from this local piece from Pennsylvania.  Along with this companion piece, which is headlined "Pennsylvania is battleground for implementing Supreme Court ruling on young lifers," the report does a nice job spotlighting the challenges facing the Keystone State in the wake of the Supreme Court's work in Miller.  Here is an excerpt from the piece which sets out some additional questions concerning which I am interested in comments:

Pennsylvania has more prisoners who were sentenced to life without parole as minors than any other state — about 500 — and the least amount of time to deal with the flood of resentencing petitions.  Under existing state law, those prisoners have 60 days to re-open their cases, while some states have as long as a year.

If the decision is to work retroactively, which is not at all clear yet, it could mean a lot of potential resentencing hearings and a lot of unhappiness dredged up for the families of murder victims.  What is the fairest way of dealing with this?

Iowa's Gov. Terry Branstad sidestepped the issue in July by commuting the life sentences of 38 juvenile offenders and making them eligible for parole after 60 years.  The action seems to be an attempt to protect victims' families, who would be forced to sit through parole hearings if lifers are granted new sentences.  He eliminated that possibility and, in going against the spirit of the Supreme Court decision, sparked criticism and legal challenges.

Do you think individual prisoners should be entitled to a resentencing hearing, or is this an unfair burden on Pennsylvania's legal system?

Speaking of unfair — should victims' families be forced to reopen old wounds with more legal proceedings?

Would you support a blanket solution like Branstad's (which, as far as we know, is not on the table in Pa.), or do you think his disregard for individual cases was unfair?

August 16, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, August 07, 2012

"Child Pornography and the Restitution Revolution"

The title of this post is the title of this new paper by Cortney Lollar now available via SSRN.  Here is the abstract:

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images.  Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution.  This Article offers the first critique of this restitution revolution.

Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose.  Instead, child pornography victims are receiving restitution simply for having their images viewed.  This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life.  To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography.  Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.

Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm.  Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance.  This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.

August 7, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Friday, August 03, 2012

Victim's family, 32 years later, now seeks closure via life (with parole) rather than deah sentence

This fascinating local story out of Texas, headlined "Long-serving Death Row inmate makes deal, could be paroled in 12 years," provides a distinctive perspective on what closure can end up meaning for some family members of murder victims.  Here are the remarkable details:

Delma Banks Jr., who has been on Death Row for three decades, accepted a life sentence Wednesday and will be eligible for parole in 2024 under an agreement with Bowie County prosecutors. Banks, 53, was convicted of fatally shooting 16-year-old Richard Whitehead in 1980 in a park near Texarkana and stealing his car.

In 2004, the U.S. Supreme Court overturned Banks' death sentence, finding that Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. A new punishment trial was scheduled for October in Collin County, where it was moved on a change of venue.

Bowie County District Attorney Jerry Rochelle told the Texarkana Gazette that Whitehead's family wanted the case to end. "They were ready for some closure," Rochelle told the newspaper. "After 32 years of dealing with the offense, the death of their son, the original trial, the appeals and the prospect of a new trial, they were ready for it to end."...

There were no witnesses to the killing and no physical evidence linking Banks to it. The prosecution's case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Cook also had convictions for robbery by assault and forgery. Banks had no criminal history, and people who were with him and Whitehead on the last night that Whitehead was alive testified there was no ill will between the two.

Banks is black; Whitehead was white.  An all-white Bowie County jury convicted Banks and returned a death sentence.  In 1999, a federal judge forced Bowie County to open its case records. Banks' lawyers found a transcript showing that Cook's testimony had been extensively rehearsed and coached.  They also learned that police paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Farr said in an affidavit that he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found.

In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help.  But they said Banks' lawyers were at fault for not uncovering the information sooner.   In 2003, Banks got within 10 minutes of his scheduled execution before the Supreme Court stopped it....

In previous motions, Banks also sought to challenge the jury's decision that he was guilty, based on the court's findings that prosecutors had erred in the trial.  But in the agreement signed Wednesday, Banks agreed to no further challenges of his conviction.  He will be 65 when he is eligible for parole, and he will have served 44 years in prison.

George Kendall, an attorney for Banks, issued a brief response to the agreement: "After 32 years, the State has decided to no longer seek the death penalty in this case.  We hope the resolution of this case will bring closure to all concerned."

August 3, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, July 10, 2012

"Are Our Sex Crime Laws So Radical They Deter Reporting?"

The provocative question in the title of this post comes from Professor Dan Filler via this post at The Faculty Lounge, which in turn links to this extended op-ed also by Dan Filler appearing in today's Philadelphia Inquirer.  The op-ed carries the headline "Penn State scandal shows sex-abuse laws can backfire," and here are excerpts:

[T]here is another lesson to be learned from this horrible [Sandusky] story, and it's time we acknowledged it.  Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it.  Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime....

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse.  The resulting panic has had serious consequences.  It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses.  In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification.  Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders.  Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit.  They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program.  But they were also trying to protect Sandusky and themselves from the tsunami that would follow.  I take [former Former Penn State president Graham] Spanier at his alleged word that he feared an inhumane result.  He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives.  There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse.  But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger.  This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing.  But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes.  When laws become so radical that they work against the protection of victims, they are inherently inhumane.

July 10, 2012 in Celebrity sentencings, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

Sunday, July 01, 2012

Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers

A few weeks ago at the US Sentencing Commission's annual conference, I had the great pleasure of meeting Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL). With the juve LWOP cases then still pending before SCOTUS, Jennifer and I had a fascination conversation about how victims of juve lifers would be impacted by a SCOTUS ruling declaring some juve LWOP sentences unconstitutional. Then, after the ruling, I asked Jennifer if she would write a guest-post for this blog, and here is what she kindly sent me for posting, reprinted in full:

Victims families' primary concern in the wake of the Miller v Alabama, Jackson v Hobbs ruling this week from the Supreme Court is for those like us who do not yet know about the case.  We have been calling on all those involved to devote themselves now to outreach to affected victims families, hopefully delivering to them all the information and support they need to cope with the new legal realities just created by the Court.  We already know that well-funded offender advocates are busily working already to assist many teen killers to file their new legal challenges.  We have long been troubled by the significant staff and funding available to help those who murdered our family members, while there has been no assistance whatsoever to the victims families left behind.

But we also are confident that very little in these offenders' prison sentences will actually change, and here's why:

While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences.  This matter will obviously be heavily litigated (see legal analysis at our website here).  Cases still under direct appeal will be re-sentenced, but state legislatures will likely weigh in first, and victims families, along with the general public, can help shape how state legislatures decide to comply with the ruling.

State legislatures can simply make the LWOP sentences optional -- then judges can still give them to the offenders.  Many will do just that.  After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer -- a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative.

While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.

Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. While we know a few will receive some relief, we are predicting that very few teen killers serving life sentences will likely ever be released early from prison.

The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request.  There was not a SINGLE vote on the Supreme Court to find all life sentences for teen killers unconstitutional.  The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers is completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.

While NOVJL only exists to support and inform victims, and we take no specific stand on what sentencing should be (the purview of legislatures and courts) we did have some concerns with the majority opinion as written.

Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.”  We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims.  The only people in this discussion with death sentences are our murdered loved ones.

To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence.  It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” -- someday.  Many victims families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.

Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning.  They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way.  They can choose each day to make good things happen, even from their cells.  Many inmates that we admire do just that.  They can even express remorse for their crimes and try to be helpful to victims everywhere.  They can live.  Even from behind bars.  They LIVE.  The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.

Also, there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion.  Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”.  But the majority opinion gave no thought, apparently, to the impact of this decision on victims families.

Finally, some of us are actually feeling sorry for the families of the offenders affected by this ruling: right now they are likely very happy -- even celebrating -- feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life.  Some are likely even planning the offenders’ homecoming.  We know that this is going to end in disappointment for almost all of them.  Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow.  They committed horrific murders.  Most will not likely ever qualify for release anytime soon, even if they are re-sentenced in a way that allows release possibilities.

Juvenile life without parole remains constitutional, rare, and available as a sentence when the facts of the offense and the offender demonstrate that it is appropriate.  Our focus remains where it should be: assisting people whose lives have been destroyed by the violent choices of others, and preventing future such tragedies.

July 1, 2012 in Assessing Miller and its aftermath, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Monday, June 25, 2012

"Utah mom upset over judge's hair-cut punishment"

The title of this post is the headline of this intriguing AP article about a (too?) creative state sentencing in a juvenile court.  Here are the details:

A Utah mother says she felt intimidated in court when a judge told her that he would reduce her 13-year-old daughter's sentence if she chopped off the girl's ponytail in court — an offer the mother says she now wishes she hadn't taken.

Valerie Bruno, of Price, said she has filed a formal complaint against 7th District Juvenile Judge Scott Johansen with the Utah Judicial Conduct Commission. The teenager and an 11-year-old friend were referred to juvenile court for cutting off the hair of a 3-year-old girl with scissors in March and for harassing another girl in Colorado by telephone.

When the 13-year-old faced Johansen for a hearing in May, he ordered she serve 30 days in detention and to perform 276 hours of community service, but he also offered to take 150 hours of community service off the sentence if her mother cut her ponytail in his courtroom.

Bruno is now expressing regret for not consulting an attorney before taking her daughter into the courtroom. "I guess I should have went into the courtroom knowing my rights, because I felt very intimidated," she told the Deseret News. "An eye for an eye, that's not how you teach kids right from wrong."

Mindy Moss, mother of the 3-year-old whose hair was cut off, said she approved of the sentence and even spoke up during the hearing when she felt Bruno had not cut off enough of her daughter's hair. Johansen then directed Bruno to cut the ponytail all the way "to the rubber band."

Moss told The Salt Lake Tribune that she originally called police about the haircut because she worried the girls' behavior could become more serious. "I didn't want them to think they got away with it … It was malicious," Moss said.

Under state law, judges are given discretion in coming up with sanctions for youth that will change their behavior in a positive way. Johansen ordered the friend of Bruno's daughter to have her hair cut as short as his. She was allowed to go to a salon to have it done, then return to the courtroom to ensure that the new hairstyle met with the judge's approval.

I know of plenty of lawyers who get upset when a judge orders a hair-cut on their fee requests.  I also know that prisoners often complain if and when prison officials require them to get haircuts.  But this is the first time I have seen a concern about a hair-cut as part of a sentencing ruling.

June 25, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, June 14, 2012

"Sentencing Councils and Victims"

The title of this post is the title of this new article posted on SSRN by Ian Edwards. Here is the abstract:

This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines.

While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.

June 14, 2012 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 11, 2012

Heated "victims" and "low" guideline range set up interesting sentencing for mobster's moll

This new AP article, which is headlined "Lawyer for Mass. mobster's lover asks for leniency," reports on the final pre-game development before a high-profile federal sentencing scheduled for tomorrow in a high-profile criminal case out of Boston.  Here are the details:

The lawyer for the longtime girlfriend of Boston mobster James "Whitey" Bulger asked a judge on Monday to sentence her to 27 months in prison for helping the fugitive stay on the run for 16 years.  Prosecutors have asked for a decade in prison for Catherine Greig, who faces sentencing Tuesday.

The 61-year-old pleaded guilty in March to charges of conspiracy to harbor a fugitive, identity fraud and conspiracy to commit identity fraud.  The 82-year-old Bulger is awaiting trial on charges he participated in 19 murders.  Authorities captured the couple in Santa Monica, Calif., last June.  Prosecutors say the pair posed as married retirees from Chicago and had a stash of more than $800,000 in cash and 30 weapons in their apartment upon capture.

In a sentencing memo, Greig's lawyer Kevin Reddington said his client was in love with Bulger and there was no evidence she knew about the money or guns.  He said Bulger was a "Robin Hood like" person and a "champion of the oppressed" when she fled with him, years before an indictment revealed "horrific allegations of murder."

The attorney called the government's sentencing recommendation a "draconian sentence" to crush someone prosecutors are trying to portray as a "sinister mastermind."  Reddington also suggested that the government was trying to "rectify the bungling" of their investigation and redeem themselves from bad publicity.  He said the government struck a plea deal with Greig, then faced criticism in the media from family members of those whom prosecutors say Bulger killed.

Greig faces a maximum of 15 years in prison, but prosecutors previously said she could serve as little as 32 months under sentencing guidelines.  Reddington's memo says probation officials recommended a prison sentence of 27 to 33 months.

The defense attorney also singled out Steven Davis, the brother of a 26-year-old woman who prosecutor say Bulger killed in 1981, as spearheading criticism he says led to a post-plea effort by the government to give his client a long prison sentence.  Greig's attorney also filed an objection Monday to a request from the U.S. attorney's office to allow Davis and other family of Bulger's victims to speak at her sentencing.  He says they're not victims of Greig's crimes.

Prosecutors have called Greig's conduct the most extreme case of harboring a criminal they've seen.  They said she protected Bulger from authorities, for years denying the family of his victims the chance to see him brought to justice.  Davis said Monday that a sentence of 27 months "would be the most ridiculous thing to ever come out of federal court."...

Patricia Donahue, the widow of a man who died in a hail of bullets after prosecutors say Bulger opened fire on someone else in 1982, called the defense's request for 27 months in prison for Greig "a joke" that would encourage other people to harbor criminals.   Donahue, of Boston, also said she was hoping to speak at Greig's sentencing.  "How are we not victims of the crime if she spent 16 years with the man responsible for my husband's death?" Donahue said.

The specifics of this AP article prompt the quote marks in the title of this post, which in turn frame the interesting legal issues now presented by Catherine Greig's sentencing.  I  can see a good argument for calling the victims of Bulgler's crimes also victims of Greig's crimes of harboring and fraud (and I generally take an expansive view of who has rights under the federal Crime Victims Rights Act).  But, especially if one credits Greig's claims that she did not know all about Bulger's homicidal past (and that folks are really most angry about how the feds have handled the Bulger case), I can also see a reasonable argument for limiting how victims of Bulgler's murders get to express themselves at Greig's sentencing.

Even more interesting for hard-core sentencing fans seems to be the distinct dynamic in this case of a defense attorney urging a sentencing judge to follow the guidelines while federal prosecutors seek some form of a departure from the guidelines.  As all federal sentencing practitioners know, in nearly all post-Booker cases, the prosecutors are typically defending the guidelines and seeking within-guideline sentences while defense attorneys attack the guidelines as too harsh and seek non-guideline outcomes.  But, in this distinctive case, it appears that the defense attorney will be praising the guidelines, while prosecutors (and perhaps also victims) argue that a within-guideline sentence would be unjust and inappropriate.

Previous related post:

June 11, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, June 05, 2012

Notable appeal for clemency from victims' family rejected by Mississippi Gov

As reported in this AP article, which is headlined "Mississippi Gov. Phil Bryant won't stop execution for 1990 slayings," a plea for mercy coming from parents of children killed by a condemned murderer did not convince Mississippi's Governor to grant clemency on the eve of the execution.  Here are the interesting details:

A Mississippi man who fatally stabbed four young nieces and nephews in a 1990 rampage faced scheduled execution Tuesday evening, despite the pleas of two sisters to spare the brother who murdered their children.

Henry "Curtis" Jackson Jr. was scheduled to die by injection at 7 p.m. EDT Tuesday. Jackson spent the day receiving relatives, including one of the sisters whose two children were kililed and who survived after being stabbed five times. The slain children ranged from 2 to 5 years old and were killed as Jackson allegedly was trying to steal his mother's safe while she was at church.

Late Tuesday afternoon, Gov. Phil Bryant declined to stop the execution. The mother of the slain children had asked Bryant to spare their brother.  "I have reviewed the facts of this case and the applicable law," Bryant said in a news release.  "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency."

But he said he was moved by the plea of the relatives.  "I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law," Bryant said.  "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children.  However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed."

Corrections Commissioner Chris Epps said at a briefing Tuesday at the Mississippi State Penitentiary that Jackson acknowledged the crime and was talkative and writing letters after visiting with family.  "This is somewhat unusual in that we have family members who are also victims," Epps said.

Among Jackson's visitors at the penitentiary in Parchman were his children, his mother and a sister, Regina Jackson was stabbed five times and survived the attack that killed her two daughters and two nephews.

Regina Jackson met with the governor Monday to plead for her brother's life.  She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing."

"As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote....

Regina Jackson told The Associated Press in a telephone interview as the execution date loomed that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."

Another sister and her husband, Glenda and Andrew Kuyoro, also asked Bryant to spare Curtis Jackson in a letter dated May 15. The couple said they tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies.

"We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Epps said Regina Jackson and the Kuyoros planned to witness the execution.

Jackson has said he doesn't remember stabbing the children, but testimony from his trial describ ed a horrific scene.  He cut the phone line before going in the house, according to the court record.  Once inside, he demanded money and attacked his sister.  One of the children tried to help, but he stabbed her, too.  Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.

UPDATE This local article reports on the completed execution of Jackson (and also notes that Mississippi's next execution is scheduled for next week).

June 5, 2012 in Clemency and Pardons, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, May 28, 2012

Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign

At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example).  This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:

The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.

There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.

"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved.  Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it.  If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."

Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing.  Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.

Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received.  Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.

Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."

The Ravi case is, of course, unique in many ways.  Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.

Recent related posts on Ravi case:

May 28, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, May 14, 2012

Intriguing victim rights' issues raised by 9/11 husband's anti-death penalty position

The New York Post has this interesting new exclusive story headlined "Husband of 9/11 victim goes to Gitmo to spare plotters from death sentence."  Here are excerpts:

The husband of a woman killed on 9/11 went to Guantanamo Bay on a shocking secret mission — to try to save the lives of the al-Qaeda monsters who planned the murder.

Blake Allison — one of 10 relatives of victims to win a lottery for tickets to the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices — had told people he was making the trip because "I wanted to see the faces of the people accused of murdering my wife."  But while there, the 62-year-old wine-company executive held a clandestine meeting with the terrorists’ lawyers, in which he offered to testify against putting their clients to death.

A vocal critic of capital punishment, Allison wants to convince the US government to spare the lives of KSM and his minions even if a military commission convicts them of a slew of death-penalty charges.  “The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post. “We can’t kill our way to a peaceful tomorrow.”

Allison’s 48-year-old wife, Anna, was a software consultant on her way to visit a client in Los Angeles when her plane, American Airlines Flight 11, was smashed into World Trade Center Tower 1 on Sept. 11, 2001.

In a lengthy conversation from his home in New Hampshire, Allison explained his controversial view — one he admits is not shared by his late wife’s relatives or by the other family members of victims he met at Guantanamo.  “My opposition to the death penalty does not say I don’t want the people who killed my wife and [the other 911 victims] brought to account for their crimes,” he said.  “But for me, opposition to the death penalty is not situational.  Just because I was hurt very badly and personally does not, in my mind, give me the go-ahead to take a life.”

He said that “9/11 was a particularly egregious and appalling crime,” but added, “I just think it’s wrong to take a life.”

Allison, who has remarried, is under no illusion that the terrorists have reformed — and would not gladly kill more Americans.  After staring at the fiendish faces of KSM, Ramzi bin al Shibh, Walid bin Attash, Mustafa al-Hawsawi and KSM nephew Ali Abdul Aziz Ali, Allison said he is certain they have “no apparent remorse and would do it again.”

Still, he said, “I’ve been opposed to the death penalty for decades, before my wife was murdered on 9/11.  I’m still opposed to it.”

He said he spoke to other family members at Guantanamo and came to realize he was alone in his view. “I know they’re sincere in their beliefs,” he said. “They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”

The defense lawyers were pleased, but probably not terribly surprised to see him.  Allison had previously testified on behalf of 9/11 conspirator Zacarias Moussaoui — the so-called 20th hijacker — who had faced the death penalty but was sentenced to a life term, which he’s serving in the Supermax prison in Colorado....

He said his opposition to execution is rooted in his Episcopalian faith. “When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’ That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”

As the title of this post highlights, I think there are some unique federal legal issues raised by Blake Allison's status as a crime victim and his vocal opposition to the death penalty when combined with the distinctive realities of the military commissions being used to try KSM and his ilk for the 9/11 mass murders.  As regular readers know, after the 2004 passage of the federal Crime Victims Rights Act (basics here), Allison has an distinct and enforceable right to notice about and a "right to be reasonably heard" in any and all "public court proceeding." But what being "reasonably heard" and even what qualifies as a "public court proceeding" is an uncertain legal issue in the context of the military commission process.  Among other interesting questions raised here is whether and how Allison could complain and/or appeal using the CVRA if he feels he is not having his rights as a victim respected by the feds through the military commission process.

May 14, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, April 20, 2012

"Murder victim’s family sues to enforce California death penalty"

The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:

The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.

Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.

The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.

In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.

“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.

Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.

The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.

The 30+ page petition in this action is available in full at this link.

April 20, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (28) | TrackBack

Wednesday, April 18, 2012

Intriguing Second Circuit ruling on restitution awards and plain error

Today the Second Circuit handed down an interesting little white-collar crime ruling in US v. Zangari, 10-4546 (2d Cir. Apr. 18, 2012) (available here), which gets started this way:

In this appeal, we consider, as a matter of first impression in this Circuit, the propriety of substituting a defendant’s gain for his victims’ losses in calculating restitution under the Mandatory Victim’s Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A–3664.  Although we join several of our sister circuits in concluding that such a substitution is error, we decline to exercise our discretion under Federal Rule of Criminal Procedure 52(b) to notice the error in this case because the defendant failed to object to the restitution calculation before the District Court and has not satisfied his burden of persuading us that the erroneous restitution order both “affected [his] substantial rights” and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”  Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citation and quotation marks omitted). The judgment of the District Court is therefore affirmed.

April 18, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, March 01, 2012

First Circuit jumps into circuit split in affirming child porn restitution award

In a long discussion at the end of a long opinion, the First Circuit yesterday weighed in on the various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader.  Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Kearney, No. 10-2434 (1st Cir. Feb. 29, 2012) (available here), and here are some notable snippets:

Under § 2259, restitution may only be awarded to a "victim," which "means the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). Kearney contends that it is "unclear" that Vicky is a victim of Kearney's conduct, with little explanation.

Vicky is plainly a victim of Kearney's crimes.  Any argument that Vicky has not suffered harm as a result of Kearney's crimes defies both fact and law....

It is clear to us that Congress intended some causal link between the losses and the offense to support the mandated restitution.  However, in this statute, Congress also did not specify the level of causation except in one place -- the catch-all clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).

With the exception of only a Fifth Circuit panel (which relied on the difference in language between the catch-all clause and the other clauses) in an opinion which has been vacated for rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all other circuit decisions have said they interpret the statute as using a proximate causation standard connecting the offense to the losses.... The government does not dispute that a proximate cause test applies.

This seeming agreement on a standard suggests more harmony than there is.  On rather similar facts the circuits have reached different outcomes in applying the proximate cause test, and those outcomes cannot be entirely explained by differences in the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding proximate cause but remanding to determine the amount of harm so caused), and McDaniel, 631 F.3d at 1209 (holding that the district court did not clearly err in finding proximate cause), with McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause was not established); Aumais, 656 F.3d at 154-55 (same), and Kennedy, 643 F.3d at 1263-65 (same).  In our view, any proximate cause standard must be understood and applied in terms of the precise language of the statute and the clear intentions of Congress....

The restitution statute was enacted against a body of Supreme Court case law explaining the type of harm caused by distribution and possession of child pornography, including psychological harm, as discussed above.  These cases make clear that injury to the child depicted in the child pornography, including injury that will require mental-health treatment, is a readily foreseeable result of distribution and possession of child pornography.

March 1, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

Wednesday, February 08, 2012

"Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing"

The title of this post is the headline of this new piece from Hadar Dancig-Rosenberg and Dana Pugach, which in now available via SSRN. Here is the abstract:

Should the victim of a domestic crime be entitled to express her views and concerns when her violent spouse is being sentenced, even if her request is for leniency?  This may well be the most difficult question for supporters of victims' rights, who are accustomed to relate to victims who ask for severe sentences for their assailants.  This question is affected by the complicated conflicting interests at the sentencing stage.  The harm suffered by the victim of an offense is pitched against the personal profile of the assailant and the public interest.

This article seeks not only to confront this issue but also to suggest a progressive resolution model, based on firm ground.  At the base is a unique interpretation and application of an expressive theory of criminal justice.  It is then supported by a complex feminist view and psycho-social research that will be used to highlight the flexibility required of any suggested solution.  This uniqueness will be explained by the characteristic dynamics of a violent relationship and the inherent differences between the women being discussed and the abstract category of 'classic (female) victims' asking for harsh sentences to be imposed on their attackers.

The article not only challenges sentencing theorists and supporters of 'classical' criminal law theory but also certain feminist theories, as it analyzes these issues from the perspective of conflicting theories, paternalism versus autonomy, and asserts their inadequacy in this case.  The authors call for the adoption of a complex feminist view instead of the dichotomous understanding of the autonomy-paternalism tension.  This argument necessitates a resolution-sensitive model that recognizes the variety of situations reflecting the actions of women living in the shadow of violence and functioning from a position of partial autonomy.  A development of a multi-dimensional model that recognizes the plurality of female typology is essential in order to best serve this multifaceted victims' rights theory.  The article then translates the theory into practice and suggests using Victim Reports as a means of empowering the women, hearing their authentic voices, enriching the Criminal Justice System and, potentially, even advancing the study of violence.

Though this piece provides a distinctively gendered perspective on victims' rights at sentencing, I believe it taps into some important broader themes.  Just as every criminal offender has distinct and dynamic characteristics than will be effected by various punishment options in distinct and dynamic ways, so too do victims often have distinct and dynamic characteristics that call for sophisticated and nuanced sentencing laws and practices in order to best serve their diverse interests in different cases.

February 8, 2012 in Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 13, 2012

Do all agree that "priest deserves to be treated like any other criminal"?

The question in the title of this post is prompted by this local commentary discussing today's upcoming federal sentencing for a priest whose gambling habit turned him into a federal felon.  The commentary by Jane Ann Morrison is headlined "Thieving priest deserves to be treated like any other criminal," and here are excerpts which providing background on the case and the sentencing debate:

The thieving, gambling monsignor who stole $650,000, mostly from his church's votive candle fund, has his supporters who want him to receive probation Friday.  I'm not one of them.

Nor is the U.S. Department of Probation, which recommends he spend 33 months in prison, which is the low end of the federal sentencing guidelines.  The high end would be 41 months. U.S. District Judge James Mahan won't be bound by the probation recommendation when he sentences Monsignor Kevin McAuliffe at 10 a.m. Friday.  He can show leniency. Or not.

McAuliffe's attorney, Margaret Stanish, has an uphill battle when she argues his gambling addiction and his mental disorders and depression are reason to give him clemency.  She's arguing for probation, so he can stay an active priest and help other gambling addicts. Why should an addicted priest get a pass from prison when other gambling addicts don't? That's unfair.

Nevada federal judges haven't been forgiving with others who steal because they want to gamble with money that's not theirs, partly because sentencing guidelines say gambling addiction is no reason for a judge to reduce a sentence.

Elizabeth "Becki" Simmons, a paralegal in the U.S. attorney's office with a fondness for gambling was sentenced to 30 months in prison by U.S. District Judge Johnnie Rawlinson in 1999. Simmons creating a scheme in which she was able to steal more than $1 million from the U.S. Marshals Service witness fund between 1988 and 1998 by creating fake witnesses. She did the time but never paid restitution.  The prosecution noted the divorced mother of two had a pattern of gambling four hours a night, four times a week.

In May, U.S. District Judge Kent Dawson sentenced Ely City Councilman Stephen Marich, a cashier at the First National Bank of Ely, to 78 months in prison.  Marich admitted to stealing at least $3.7 million over 12 years. (Auditors estimated it was actually about $5.9 million.) Dawson rejected the "compulsive gambling disorder" defense, noting that Marich was gambling using the bank's money and not his own.

McAuliffe was doing the same.  He wasn't gambling his savings, he was gambling money mostly meant for St. Elizabeth Ann Seton Catholic Church in Summerlin, where he was the pastor.  Most of the theft was from looting the votive candle fund.  He also created false financial records so that St. Elizabeth was underreporting its financial condition and shortchanging the Las Vegas Diocese about $84,500.  That's why he pleaded guilty to three counts of mail fraud; he mailed fraudulent documents.

Despite his theft, McAuliffe "left the parish and school debt-free and in excellent financial health," his attorney wrote.  A more deceitful image of McAuliffe emerged from Assistant U.S. Attorney Christina Brown's sentencing memo.  She noted the priest lied to the FBI when first asked why his income hasn't matched his expenses since 2002....

Should the monsignor be treated different than the thieving Las Vegas paralegal and the thieving Ely bank cashier?  Absolutely not.

Though the Catholic Church teaches forgiveness, McAuliffe should be treated like any other criminal, because that's what he is.  In court, McAuliffe shouldn't be held to a higher standard because he is a priest.  But the priest doesn't deserve a pass from prison.

Without knowing more of the facts, I am disinclined to assert that either probation or nearly three years in prison is a fitting sentence in this case.  That said, though I agree that a priest does not "deserve a pass from prison" in all settings, I also resist the notion that a priest "should be treated like any other criminal."  

For a wide variety of reasons, I do not think that a priest really is similarly situated to all other federal criminals.  In this setting, I would be especially interested to know about, and be responsive to, the "victims" of his crimes: if this priest's parishioners are among his supporters urging a probation sentence (presumably because they genuinely feel he can do more good for them on probation than in prison), my commitment to victim interests at sentencing pushes me toward thinking this man of the cloth ought to get at sentencing some of the very forgiveness that the church preaches and that his parishioners may be eager to demonstrate.  (But, then again, maybe my sympathetic sentencing judgment in this case is being unduly influenced by my deep (tongue-in-cheek) concerns about the enduring "War on Christmas" and the "War on Religion" that I hear is being waged in the US.)

UPDATE:  This AP story, headlined "Gambling Priest Gets 3 Years Prison in Vegas Case," suggests that the federal district judge sentencing Monsignor Kevin McAuliffe might have considered the occupation of the man he was sentencing an aggravating factor.  Here are the interesting details:

Muffled sobs erupted Friday in a courtroom packed with supporters of a Roman Catholic priest who was sentenced to more than three years in federal prison and ordered to repay $650,000 he acknowledged embezzling from his northwest Las Vegas parish to support his gambling habit.

Monsignor Kevin McAuliffe, 59, stood straight and offered no reaction as U.S. District Judge James Mahan credited him for accepting responsibility for looting parish votive candle, prayer and gift shop funds for eight years, but faulted him for "hedging his bet" by blaming it on a gambling addiction....

Defense attorney Margaret Stanish asked the judge for probation so McAuliffe could continue getting counseling for his gambling addiction, keep practicing as a priest and pay restitution to St. Elizabeth Ann Seton Church in Summerlin.  He won't get treatment in federal prison, Stanish said. "Is it all about retribution?" she asked the judge.  "This court has the ability to fashion a punishment that takes into account not only the offense but the individual.  He would not be here but for a gambling addiction."...

But Assistant U.S. Attorney Christina Brown characterized McAuliffe as an opportunist and thief who didn't exhaust his own savings before taking church cash to fund gambling, cars and travel.  She accused him of grasping at gambling addiction as "a hollow excuse offered now, when he's desperate for leniency from the court."...

The judge referred to a parish rift over McAuliffe's crime when he said he received approximately 100 letters of support through the priest's defense attorney.  Mahan also made part of the court record a stack of letters parishioners sent straight to the court saying McAuliffe should be punished.  "I expect the church to forgive him, and the parishioners by and large to forgive him," Mahan said from the bench.  "That's different than the justice system."...

Mahan handed down a 37-month sentence — midway between the 33-month minimum and 41-month maximum recommended by federal probation officials — along with the restitution order. The judge also sentenced McAuliffe to three years of supervised release following prison and banned him from gambling. McAuliffe was ordered to begin serving his sentence April 13.

Outside court, longtime parishioner Regina Hauck, 80, called the judge fair but the sentence unfair.  She said she wanted forgiveness.  "I know him. He's a wonderful priest," Hauck said of McAuliffe.  "But I think he's a sick man, and everyone makes a mistake."

January 13, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (17) | TrackBack

Monday, January 09, 2012

Notable paper urging a different model for victim involvement in criminal justice system

Via this post at Right on Crime, I came across this interesting new paper from the Partnership for Safety and Justice about victim involvement in the criminal justice system titled "Moving Beyond Sides: The Power and Potential of a New Public Safety Policy Paradigm."   Here is a paragraph describing the goals of the paper and another from the introduction revealing its key themes:

This paper is designed to foster critical dialogue and actual movement toward more proactive and thoughtful collaboration between crime survivor advocates and criminal justice reform advocates who have a shared stake in creating a system focused on long-term, evidence-based policies best equipped to create safe and healthy communities....

When examining the propagation of tough on crime policies, particularly at the state level, certain crime victim advocates have played a powerful role.  These victim organizations and activists have created the emotional impetus for the passage of tough on crime policies.  Both intentionally and unintentionally, these high-profile “victim advocates” have become the de facto representatives of the victims’ perspective among the media and policymakers, while the authority and scope of their perspectives remain largely unchallenged.  What usually goes unnoticed in criminal justice policy debates is the absence of the diversity of victims’ perspectives.  The communities most impacted by crime and violence — low-income communities, communities of color, and women — are rarely taken into consideration by these high-profile victim advocates who are primarily coming from a white, male, and middle-class perspective. It is not unusual that the people with privilege and the most access to the system have an easier time getting the system to respond when personally affected; but the most dominant voices among victim advocates don’t reflect the full spectrum of victim experiences and perspectives and are advancing a narrow policy agenda that has actually damaged some communities.

January 9, 2012 in Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, December 07, 2011

"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"

The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:

Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society.  In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259.  Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.

Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts.  As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.

To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear.  Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.

December 7, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, November 21, 2011

North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim

Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook.  But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways.  Here are the details:

A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims.   Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court.  Judge Stuart Albright sentenced his as a habitual offender.

Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001.  Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.

Gaston had been a registered sex offender since November 26, 2003.  He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.

Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites.  "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.

Some related posts:

UPDATE:  This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:

Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses.  California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....

"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...

Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said.  "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...

The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year.  Six years ago, they found just 261.  The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....

In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders.  Social networks now cut out the middle man....

Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars.   In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.

November 21, 2011 in Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (23) | TrackBack

Friday, November 04, 2011

Are you ready for some football ... Ponzi scheme sentencing news?

With apologies for the weak late Friday headline, here is part of this AP account on a notable long sentence imposed on a Ponzi schemer who bilked a number of notable clients:

The former CEO of a Texas-based investment firm was sentenced to 17 years in prison Friday for a scheme that used former NFL players to bilk hundreds of investors out of more than $50 million.

Several of his victims watched as Kurt Branham Barton, the former head of Triton Financial, gave a tearful apology at the hearing in Austin. "I never intended for any of this to happen," said Barton, 43, as he choked back tears. "I feel terrible about what's happened."

He was convicted in August on 39 counts, including more than a dozen each of wire fraud and money laundering.... Investors including Barton's family and church members thought their money was for real estate deals and business loans. Prosecutors say Barton spent much of the money on himself, using it to pay for such things as a luxury box at University of Texas football games and a $150,000 car.

Former NFL quarterback Ty Detmer testified during the trial that he considered Barton a close friend and lost most of this life savings, about $2 million.  Other athletes who prosecutors said promoted or invested with Triton were Heisman Trophy winner Earl Campbell, former NFL quarterback Jeff Blake and NFL kicker David Akers.  Akers said he lost more than $3 million. None of the athletes were accused of wrongdoing.

The Ponzi scheme bilked more than 300 investors over four years before ending in December 2009, prosecutors said. He was able to raise about $75 million from investors, only about $20 million of which went to legitimate business purposes, prosecutors said. Many of the investors lost their retirement savings in the scheme.

"He took my money for his fun ... and didn't do what he told me he was going to do," said Charles Dickens, one of Barton's investors.  He said victims "wanted to just get by a little better, try to improve our lot.  Now it's all gone."

Attorney Rip Collins said Barton was trying to run a legitimate yet mismanaged business and believed it could be turned around.... Speaking to U.S. District Judge Sam Sparks, Kurt Barton's father, Chuck Barton, said it had been "one of the most horrifying experiences of our life."...

Many of Barton's friends and family submitted letters in support, insisting to the court that Barton is a good father and upstanding citizen — not the vicious predator prosecutors had described.

One was from former Dallas Cowboy Tony Dorsett, who called Barton a friend and an "honest, hard-working, God-fearing family man that cares about people and community."

I know that people losing their life savings to a fraud is no laughing matter, nor is the sentencing of even a scoundral to nearly two decades in prison.  Nevertheless, on a Friday afternoon before a big football weekend, I cannot help but want to encourage some readers to suggest fitting or funny headlines for the story of a man who robbed from the likes of Ty Detmer, Earl Campbell, and Jeff Blake.  Also, the fact that one of the victims who testified at sentencing was named Charles Dickens(!?!) surely is a sign that this busy week should be concluded with some punny comments on this story. 

November 4, 2011 in Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (15) | TrackBack

Saturday, October 15, 2011

"Killer's plea deal outrages family" ... because of lack of DP in NJ?

The title of this post is part of the headline of this local article out of New Jersey, along with my follow-up question and concern.  First, here are excerpts from the article:

A 25-year-old Camden gang leader who sanctioned the grisly killings of a Burlington County couple last year was sentenced to 30 years in prison for the crime Friday, despite outrage from a victim’s family.

Muriah Huff’s uncle, grandmother and cousins asked Superior Court Judge Irvin Snyder to reject the plea deal for Kuasheim “Presto” Powell offered by the Camden County Prosecutor’s Office in favor of a jury trial and potential life sentence. “Justice was not served. The system is broken,” said Earl Huff, uncle of 18-year-old Muriah.

In accordance with the deal, Snyder sentenced Powell to a pair of 30-year sentences for pleading guilty to the murders of Huff and Michael Hawkins, as well as two 20-year sentences for his guilty plea in the shooting of two Pennsauken brothers in a separate incident. Powell will serve the sentences concurrently, meaning he could be released when he is in his 50s. He must serve a minimum of 30 years, including time served of 19 months.

Camden County Assistant Prosecutor Mary Alison Albright said by agreeing to a deal, her office ensured Powell would spend time in prison rather than taking a chance he would be found not guilty. “With a guilty plea, we control the outcome,” Albright said. As part of the plea, Powell is committed to testifying against any co-defendants who go to trial.

Authorities said Huff, of Cinnaminson, and her boyfriend, 23-year-old Michael Hawkins, of Mount Holly, were tortured over a period of hours by young Bloods members in a row home on the 500 block of Berkley Street in Camden.

Powell, the admitted leader, ultimately ordered the pair be killed. He shot Hawkins six times in the head. Huff was beaten with a chair, choked with a rope, stabbed and suffocated. Authorities said Hawkins was killed as part of a gang dispute. Huff was killed simply to cover up Hawkins’ death....

[T]he family’s frustration boiled over Friday at the thought that Powell could walk free some day. “He shouldn’t have the opportunity to get out and enjoy a life after prison,” Huff’s cousin, Natasha Huff, told Snyder during the hearing.

“For him to be able to sit here and play let’s make a deal … something is wrong with the system,” Earl Huff added later. Shortly before handing down the sentence Snyder said, “The family is right. Thirty years doesn’t cut it.”...

Powell was the oldest of the gang members charged, and as such, admitted during his guilty plea the others looked to him during the killings. While he laughed and smiled while talking with his attorney before the hearing, Powell later told Snyder he was sorry for the crimes and that jail has changed him.

Powell said he has no explanation for his past actions, which he said he has replayed in his mind during his time in prison. When Powell pleaded guilty in August to his role in the Feb. 22 killings of Huff and Hawkins, he also admitted shooting two brothers in Pennsauken the day before. “If I could go back in time, I would change things,” he said.

Snyder dismissed Powell’s apology as continued manipulation. “I don’t believe anything you are saying about how you feel,” he said before handing down the sentence.

As suggested in the title of this post, I fear that this (seemingly too) lenient plea deal for a multiple murderer is a direct result of New Jersey's decision to abolish the death penalty in the state.  In states with the death penalty, plea deals for these kinds of horrific crimes will often involve prosecutors taking death off the table in exchange for a plea that carries a life with parole or an LWOP sentence.  But in NJ now, LWOP is the longest possible sentence that can be threatened even after a full trial, so state prosecutors have to offer something less to get even a mass murderer to be willing to give up his right to roll the dice at trial.

Regular readers know that I consider the impact on plea practices to be a unique and potentially potent argument in favor of the death penalty, though one not ever discussed sufficiently.  This New Jersey case serves as another prime example of how the abolition of the death penalty may permit a distinct kind of sentencing injustice.

October 15, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, September 14, 2011

"Family of alleged hate-killing victim opposes death penalty in case"

The title of this post is the headline of this CNN report which provides a notable example of a situation in which respecting the wishes of crime victims would result in potential (undue?) sentencing leniency.  Here is how the piece starts:

The family of an African-American man who died after allegedly being beaten by a group of white teens and run over by a truck is asking state and federal officials not to seek the death penalty in the case.

Relatives of James Craig Anderson, who died shortly after receiving his injuries on June 26, sent a letter with their request to the prosecutor in the case, Hinds County District Attorney Robert Shuler Smith.   "We ask that you not seek the death penalty for anyone involved in James' murder," the letter states; the letter is signed by Barbara Anderson Young, James Craig Anderson's sister who is in charge of, and speaks for, his estate.

The letter states that the family is opposed to the death penalty partly for religious convictions.   "Our opposition to the death penalty is deeply rooted in our religious faith, a faith that was central in James' life as well," the letter states.  But the family goes on to explain that there is another reason for their opposition, one that is tied to Mississippi's racial past.

"We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites," the letter states.  "Executing James' killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."

The family has been mostly private in its grief, but the letter sent to the DA's office alludes to what the family is going through.  "Those responsible for James' death not only ended the life of a talented and wonderful man.  They also caused our family unspeakable pain and grief. But our loss will not be lessened by the state taking the life of another," it says.

The death of James Craig Anderson, 48, occurred early June 26 in Jackson, allegedly at the hands of white teens who, after a night of partying and drinking, decided to go looking for black people to assault, law enforcement officials have said, quoting one of the suspects in the case.

Anderson's death drew national attention after CNN first reported it and aired exclusive surveillance video of the actual killing, captured by a parking lot security camera in a Jackson suburb.  Smith, the district attorney, has called it "vicious" and a "premeditated hate crime."

"We have a racially motivated killing," said Smith, asserting that the group of white teens sought out a black person to kill.  "The teens came to Jackson and they picked out a black man, an innocent victim.  They assaulted that victim, and then they just killed him."

September 14, 2011 in Death Penalty Reforms, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, September 08, 2011

Second Circuit panel reverses child porn restitution award to "Amy"

The Second Circuit has today issued an important new opinion in the on-going saga concerning whether and how the kids victimized by being featured in illegal child pornography can secure restitution awards from defendants who downloaded these pictures via the internet.  The panel opinion in US v. Aumais, No. 10-3160 (2d Cir. Sept. 8, 2011) (available here), gets started this way:

Gerald Aumais (“Aumais”) appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months’ imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of “Amy” (a pseudonym), one of the victims depicted in the images and videos. Aumais challenges the restitution order on the ground that his possession was not a proximate cause of Amy’s loss. Aumais also argues that the district court committed procedural and substantive error in sentencing him to 121 months’ imprisonment.   We conclude that: based on the facts in this case, Aumais’ possession of Amy’s images was not a substantial factor in causing her loss; and that the district court committed no procedural or substantive error in imposing the sentence of imprisonment.  Affirmed in part and reversed in part.

And here are the key concluding paragraphs in the court's restitution analysis from the later part of Chief Judge Jacobs' opinion for the panel (with cites omitted and emphasis in original):

The magistrate judge found that “Amy had no direct contact with Aumais nor even knew of his existence.” Amy’s Victim Impact Statement makes no mention of Aumais (or any other possessor of her images for that matter). Moreover, Dr. Silberg’s evaluation of Amy, upon which the doctor’s testimony was based, took place on June 11-12, 2008, July 29, 2008, and November 10, 2008, whereas Aumais was not arrested at the border until November 16, 2008. While Dr. Silberg may describe generally what Amy suffers from knowing that people possess her images, Dr. Silberg cannot speak to the impact on Amy caused by this defendant.... Here, in the absence of evidence linking Aumais’ possession to any loss suffered by Amy, we cannot agree with the magistrate judge’s conclusion that “Aumais’ conduct remains a substantial cause of [Amy’s] harm.”

This opinion does not categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images.  We have no basis for rejecting Dr. Silberg’s findings that Amy has  suffered greatly and will require counseling well into the future.  But where the Victim Impact Statement and the psychological evaluation were drafted before the defendant  was even arrested -- or might as well have been -- we hold as a  matter of law that the victim’s loss was not proximately caused by a defendant’s possession of the victim’s image.

It will be very interesting to see whether prosecutors or the folks who have been representing "Amy" and other victims in seeking restitutional awards will pursue further review of this ruling.  The forcefulness of this ruling (which comes on the heels of a similar pro-defendant ruling from the Ninth Circuit a few months ago) may lead many child porn defendants, and even those outside of the Second Circuit, to resist even more forcefully these kind of restitution claims in district courts.  For that reason (and others), those who advocate for restitution awards in these kinds of cases may be especially eager to at least try to have Aumais further reviewed.

Some related recent federal child porn restitution posts:

September 8, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, August 27, 2011

Should guidelines actually call for a sentence increase if a defendant apologizes?

The provocative question in the title of this post is prompted by this provicative new paper available via SSRN by Professor Murat Mungan.  The paper is titled "Don't Say You're Sorry Unless You Mean it," and here is the abstract:

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature.  This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state.  In this paper, I develop a formal framework in which one can analyze remorse and apologies.

I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible.  This will lead victims, upon receiving apologies, to forgive offenders more frequently.  Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence.  An (arguably negative) effect of pricing apologies is its elimination of insincere apologies.  If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

August 27, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Saturday, July 30, 2011

NJ Supreme Court expresses concerns about victim-impact videos at sentencing

As detailed in this lengthy local piece, headlined "Court ruling troubling for victim-impact videos," last week a "New Jersey Supreme Court decision in the case of a Burlington Township woman who killed her police-officer husband in 1999 addressed the issue of victim-impact statements at sentencing hearings, in particular the 'video tributes' played in court for homicide victims."   Here is more about the ruling and its possible impact:

In its July 21 ruling, the high court said defendant Marie Hess was denied her constitutional right to effective assistance of counsel when her defense attorney did not object to a video played at her sentencing that included popular and religious music, a photo of James Hess' tombstone, and footage of his funeral.

"At sentencing, no one questions that a family member can make a statement about a homicide victim or present photographs or even a video showing the victim as he or she lived in the time before his or her death.  The issue is whether there are any limits to the type of video that can be displayed at sentencing," the court wrote.

The court found "the music and the photographs of the victim's childhood and of his tombstone, and the television segment about his funeral, do not project anything meaningful about the victim's life at the time of his death," the opinion said, adding that they should have been redacted because they had "little to no probative value (but) instead have the great capacity to unduly arouse or inflame emotions."

The decision had immediate impact on the trial courts.  In Burlington County, Superior Court Judge Jeanne T. Covert referenced the decision during a vehicular-homicide sentencing, saying she had viewed a video produced by the victim's family and, because it was short and did not include music, she would allow it to be played in the courtroom....

Richard Pompelio, executive director of the New Jersey Crime Victims' Law Center, called the Supreme Court decision troubling.   Pompelio said part of the victims' rights laws, passed in New Jersey in 1991, are a way to give the victim "a voice, a face, and a presence in the courtroom," not influence or prejudice a sentencing.

"I wish the Supreme Court knew the history and understood the importance of victim rights," he said. "Sentencing is really the only time the victim and his survivors have that voice, and they have been able to do that at the sound discretion of the trial judge.  And it has worked."  Even before the high court decision, a trial judge could order a video to be edited....

Advocates worry that a cautious judiciary without clear guidelines of what is allowed and what isn't could shelve victim-impact videos in some courtrooms.  "Judges tend to err on the side of caution, and they do not want to be overturned and, for the matter, to come back for re-sentencing," Pompelio said.  "The question is, will they throw the baby out with the bath water? That would be unfair and unjust."

The full New Jersey Supreme Court ruling in this Hess case is available at this link.

July 30, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Monday, July 25, 2011

Accuser tells Newsweek she wants to see DSK in jail

Nafissatou Diallo, the woman whose rape accusations led to the arrest of former IMF director Dominique Strauss-Kahn, has now identified herself and described the incident in this Newsweek story. Here is one sentencing highlight from the Newsweek account:

In her interview with NEWSWEEK, Diallo didn’t disguise her anger at Strauss-Kahn.  “Because of him they call me a prostitute,” she said.  “I want him to go to jail. I want him to know there are some places you cannot use your power, you cannot use your money.”  She said she hoped God punishes him.  “We are poor, but we are good,” she said.  “I don’t think about money.”

It is interesting to speculate whether and how these statements by Diallo might make it that much harder for DSK to make the most serious criminal charges he is facing go away by some offer of a monetary settlement (or even a restitution punishment after a plea to a lesser charge). 

Prior posts on DSK charges:

UPDATE:  A helpful reader forwarded to me this on-point recent commentary by Professor Leonard Orland which appeared in The National Law Journal under the headline "How should an ethical prosecutor deal with a high-publicity rape case?"

July 25, 2011 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, July 13, 2011

"Blaine hacker who terrorized neighbors gets 18 years in federal prison"

The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence.  Here are the details:

Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.

Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear.  Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips.  "I felt like me and my family were under attack.  I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...

Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router.  He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives.  Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....

The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for.  The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.

Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't.  A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....

Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty.  Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial.  The judge rejected his arguments, setting the stage for Tuesday's proceedings....

Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom.   But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....

He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.

Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen.  The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked.  He acknowledged that Ardolf has "done some bizarre, hurtful acts."

Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president.  Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....

Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months.  But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.

July 13, 2011 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Monday, July 11, 2011

Two notable and important child porn sentencing rulings from the Ninth Circuit

The Ninth Circuit today handed down a bunch of criminal law opinions, including two dealing with oft-occurring and important federal child porn sentencing issues.  Here are links and the basics from the start of the opinions, which were issued by two distinct panels:

US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here):

Joshua Osmun Kennedy was convicted by a jury of possessing and transporting child pornography.  He appeals his conviction, his sentence, and the district court’s order directing him to pay $65,000 in restitution to two victims.  We affirm Kennedy’s conviction and sentence.  Because the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims, we vacate the restitution order.

US v. Quinzon, No 10-50240 (9th Cir. July 11, 2011) (available here):

Pio James Quinzon was convicted of possession of child pornography. He now appeals a judgment that includes, as a condition of supervised release, a requirement that monitoring technology be installed on his computer-related devices.

The Kennedy ruling appears to be the most notable of this pair because, as it explains, the child porn restitution matter concerns a "difficult issue of statutory interpretation [that] has been considered, but not satisfactorily resolved, by several... circuits. See United States v. Monzel, ___ F.3d ___, 2011 WL 1466365 (D.C. Cir. 2011); In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011).  (I hope to have a separate post on this issue and the  Kennedy ruling once I have time to consume it fully.)

July 11, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack