Monday, January 20, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (41) | TrackBack

Monday, December 09, 2013

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

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

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

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

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

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

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

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

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

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

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

December 9, 2013 in Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, December 05, 2013

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

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

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

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

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

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

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

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

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

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

A few prior posts on Paroline:

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

Monday, December 02, 2013

Another preview of Paroline via the New York Times

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

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

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

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

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

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

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

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

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

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

A few prior posts on Paroline:

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

Friday, November 22, 2013

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

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

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

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

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

Tuesday, November 19, 2013

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

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

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

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

Saturday, November 09, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

Tuesday, October 29, 2013

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

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

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

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

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

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

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

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

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

Monday, October 21, 2013

SCOTUS grants cert on federal restitution and state Atkins application cases

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

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

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

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

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

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

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

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

Wednesday, October 16, 2013

Intriguing controversy over victim involvement in Whitey Bulger sentencing

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

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

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

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

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

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

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

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

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

Wednesday, September 11, 2013

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

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

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

But does that fact have any moral relevance?

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

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

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

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

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

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

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

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

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

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

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

Prior post in series:

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

Monday, September 09, 2013

Second Circuit panel provides fuller account of child porn restitution accounting

The Second Circuit today released a lengthy panel opinion in US v. Lundquist, No. 11-5379 (2d Cir. Sept. 9, 2013) (available here), providing a detailed discussion of the rules and standards for child porn restitution sentencing decisions. Here is how the opinion begins:

In this case, defendant-appellant Avery Lundquist was convicted of receiving and possessing child pornography.  Among the images in his possession was one of "Amy," the pseudonym for a young woman who was sexually abused by her uncle when she was four years old. The uncle photographed his abuse of Amy, and disseminated those images on the Internet.

Amy is now in her twenties, and the pornographic images her uncle took of her continue to be traded on the Internet.  Some 113 individuals -- including Lundquist -- have been convicted of possessing images of her.  The questions presented are whether Lundquist may be ordered to make restitution to Amy and, if so, in what amount.

The district court (Suddaby, J.) concluded that Lundquist proximately caused $29,754.19 of Amy's losses, but decided he should be held jointly and severally liable, along with all others convicted of possessing Amy's images, for her total losses of $3,381,159.  We conclude that there was sufficient evidence to support a finding of proximate cause and that the district court reasonably estimated the share of Amy's losses to be attributed to Lundquist as her total loss divided by the number of persons convicted of possessing her images at the time of the restitution request.  The district court abused its discretion, however, by including in its calculations losses that Lundquist could not have proximately caused and by holding Lundquist jointly and severally liable for harm caused by defendants who were not before the court. Accordingly, we affirm in part, vacate in part, and remand for recalculation of the amount of restitution.

September 9, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Monday, September 02, 2013

"Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process"

The title of this post is the title of this intriguing looking new paper by Tracy Hresko Pearl now available via SSRN. Here is the abstract:

Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States.

In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.

September 2, 2013 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, August 01, 2013

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN.  Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:

Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."

"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."

During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them."  She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."

Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse."  When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."

Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.

Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person.  I simply kept them there so they couldn't leave."  He was referring to the three women he held captive for about a decade.   Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."

"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...

Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."

"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."

Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....

Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks.  Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."

"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years.  The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...

"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.

Related prior posts:

August 1, 2013 in Offense Characteristics, State Sentencing Guidelines, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, July 26, 2013

Cleveland kidnapper Castro takes LWOP+ plea deal sentence to avoid death penalty

The "settlement" value of the death penalty has shown itself again here in Ohio with the breaking news that "Cleveland kidnapper Ariel Castro accepted a plea deal today that sends him to prison for life plus 'not less than 1,000 years' with no chance of parole for abducting three women and keeping them as sex slaves for over a decade."  Here is more from this ABC News account of today's court proceeding:

"I'm fully aware and I do consent to it," Castro said at a hearing today in a Cuyahoga County court. The deal will spare him from the possibility of facing the death penalty. "I knew I was pretty much going to get the book thrown at me," Castro, 52, told the court.

The agreement as explained by prosecutors would sentence Castro to no "less than 1,000 years" in prison after completing a first sentence of life with no chance of parole. "You understand by accepting this plea, you're accepting life without parole," Judge Michael Russo asked Castro. "You'll never leave prison alive."

"Yes, I do," replied Castro.

The former school bus driver was accused of the aggravated murder of a fetus after forcibly causing an abortion in one of his victims that he is accused of impregnating. That charge would have carried the death penalty had he been convicted. He had previously pleaded not guilty to nearly 1,000 counts of kidnapping, rape and other crimes....

The victims, Amanda Berry, Michelle Knight and Gina DeJesus were discovered in Castro's home in May. They were abducted between 2002 and 2004, when they were in their teens or early 20s. "Amanda, Gina, and Michelle are relieved by today's plea. They are satisfied by this resolution to the case, and are looking forward to having these legal proceedings draw to a final close in the near future. They continue to desire their privacy," attorney Kathryn T. Joseph said in a statement.

Prosecutors said if evidence of additional crimes came to light, Castro could still be indicted on future charges that included the death penalty. Castro said he was "willing to work with FBI and I would tell them everything" about his crimes. Wearing glasses for the first first time in court, Castro appeared more alert than at previous hearings.

He said he read and signed the plea deal and understood it although "my addiction to pornography and my sexual problem has taken a toll on my mind" that sometimes caused problems with comprehension. "I was victim as a child and it just kept going," Castro blurted out as an explanation for his crimes. But the judge cut him off, advising him to save his story for his sentencing hearing.

The judge still must accept the terms of the deal agreed to by lawyers and Castro, following a sentencing hearing where the victims may speak. The victims, through their spokesperson, had previously said they did not want to testify at a trial.

Though I suspect some die-hard death penalty abolitionists might take issue with my claim, I sincerely believe that the effective and efficient (and victim-helpful) final outcome in this case was made possible, at least in part, by Ohio having the death penalty on the books. I have a hard time seeing how it would be ethical for a defense lawyer to urge Castro to take a deal like this unless it involved eliminating the chance of a death sentence.  Of course, in a jurisdiction without the death penalty, there never is a chance of a death sentence.

A reasonable argument can be made that the costs and harms of trying to administer the death penalty ultimately outweigh the plea benefits that capital punishment can produce in cases like this. But I think a fair and honest debate about the virtues and vices of the death penalty must recognize cases like this one in which the death penalty would seem to here have done more good than harm for both the victims and society at large.

Recent related posts:

July 26, 2013 in Death Penalty Reforms, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (21) | TrackBack

Wednesday, July 24, 2013

Should (and can) Alaska really be precluding plea deals with sentence reductions?

ALASKAThe (cumbersome) question in the title of this post is my first reaction to this notable local criminal justice story coming out of Alaska, which is headlined "State puts an end to sentencing deals in serious crimes." Here are the fascinating details:

State prosecutors will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence, the Alaska Department of Law said Tuesday.

The change of policy, which took effect Tuesday, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny. A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial. Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.

Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that. The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.

Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public. "It's a major decision that's going to affect system-wide daily business in Anchorage courts," said Chester Gilmore, an Anchorage defense attorney. "Our model of criminal justice initially started with judges making those sentencing decisions and it should be handed back to them," he said.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple -- Touch Chea and Sorn Sreap -- in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman. Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June. A judge and the Department of Corrections both failed to recognize the plea agreement mistake. The Active case became "part of the mix" in the decision to announce the new policy now, Svobodny said, although a change had been under discussion in the law department for more than a year....

Another influence was Gov. Sean Parnell's "Choose Respect" campaign. Parnell's office "worked closely" with the Department of Law on the change, said a spokeswoman.The "Choose Respect" campaign has emphasized the prosecution of sexual offenders and domestic violence perpetrators. "We feel the policy will better protect victims and ensure perpetrators are held accountable for their crimes," Parnell spokeswoman Sharon Leighow said.

Both prosecutors and defense attorneys say the rule will inevitably lead to more trials. Plea bargains aren't always appropriate but in many cases prosecutors and defendants agree they are the best way to resolve a case quickly and fairly, Gilmore said. The policy "takes away a lot of the reason anyone would have for not going to trial," he said....

In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found. A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.

I suspect resourceful Alaskan prosecutors and defense attorneys will still find a way to strike sentence-impacting plea deals even in the wake of this fascinating new prosecutorial policy. Ergo, I am not sure that the state can, as a functional matter, really put an end to all sentencing deals in serious cases. More broadly, as the question in the title of my post suggests, I wonder if others question (as I do) whether this is a wise policy even if it could be practically sustained. Will rape victims and other victims of serious crimes in Alaska really be pleased to have to endure more trials and the extra burdens such trials might place on them? Will the resources the state will now likely have to devote to more trials to resolve criminal charges reduce the resources needed to fight crime in other ways in the state?

I could go on and on with philosophical and practical questions concerning what Alaska seems to be trying to do hear, but for now I will stop to hear others' reactions and thoughts about a criminal justice development that justifies watching closely in the months and years to come.  Is Alaska on the verge of becoming the Last Frontier State for plea bargaining?

July 24, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, July 04, 2013

Missouri Gov vetoes bill to take juve sex offenders off state registry

As reported in this AP story, headlined "Nixon vetoes sex offender measure," the Governor of Missouri is apparently concerned this holiday week that a bill passed by his state's legislature will provide for too potential much freedom for juvenile sex offenders. Here are the basics:

Gov. Jay Nixon on Wednesday vetoed legislation that he said would remove sex offenders who commit their crimes as juveniles from websites that let the public know who they are, a day after he signed a measure that strengthens laws against sexual offenses.

Nixon said the vetoed measure is too broad. “It would grant this relief to juvenile sex offenders regardless of the sexual offense for which they were convicted to include forcible rape, forcible sodomy and child molestation,” said Nixon, who was state attorney general before becoming governor.

“Moreover, the bill would deprive victims of sex offenses the opportunity to be heard before an offender is removed from the very websites that are designed to protect victims and other members of the public.”...

State lawmakers return to the Capitol in September to decide whether they will try to override any vetoes.

On Tuesday, Nixon signed a criminal justice bill that includes a change to what constitutes rape. It had been defined as having sex with another person by use of “forcible compulsion,” which includes the use of a substance to physically or mentally impair another without his or her knowledge or approval. The new law broadens that to include instances in which someone is incapacitated, is incapable of consent or lacks the capacity to consent.

July 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, June 28, 2013

"Should child porn 'consumers' pay victim millions? Supreme Court to decide."

The title of this post is the headline of this new Christian Science Monitor piece discussing the Supreme Court's grant of certiorari yesterday in Paroline (noted here).  Here is how the piece gets started:

The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images — even if the individual had no direct contact with the child-victim.

Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.”  The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.

The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution.  Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.

On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.

Recent related post:

June 28, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (9) | TrackBack

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