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.
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.
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.
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.
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:
- "Facebook membership could prove costly for sex offender"
- Should all sex offenders be barred from Facebook and MySpace?
- Is it constitutional to criminalize having a Facebook page?
- Should a prison sentence necessarily halt all access to all social media for all purposes?
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.
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.
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.
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."
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:
- Federal sentence for receiving child porn includes forfeiture of home
- Federal judge imposes large restitution punishment for downloading child porn
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
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.
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.
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:
- IMF Chief Dominique Strauss-Kahn denied bail in NYC sex assault case as alibi talk emerges
- DSK formally indicted, though gets bail with lots of conditions
- DSK to be freed from house arrest as victim's rape story being questioned
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?"
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.
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
Friday, June 24, 2011
Sentencing meets the First Amendment in DC Circuit material witness ruling
An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here). Here is how the opinion starts:
Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities. After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings. The District Court denied the request. Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980). We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings. Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims. United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991). We affirm the orders of the District Court
Tuesday, June 07, 2011
Some family members of Ohio mass murderer victims want plea deal, not death penalty, for "closure"
As detailed in this new AP story, a high-profile mass murder case in Ohio has today prompted a high-profile plea for a plea deal from family members of the murder victims. The piece is headlined "Relatives of Cleveland victims seek plea deal in Sowell case," and here are excerpts:
Some relatives of 11 women allegedly killed by a man on trial are seeking a plea deal to spare the emotional ordeal of seeing the "horrors" play out in court, two attorneys representing families said today.
The attorneys said relatives of at least six victims have signed an appeal asking Cuyahoga County Prosecutor Bill Mason to strike a deal in the case against Anthony Sowell, 51. "They are concerned about the emotional trauma that the trial is going to cause on their families," Christine LaSalvia said.
"They are really just looking for closure. And I think, just as a way of avoiding reliving what happened and the horrors of what happened, they would prefer not to go through the trial." Her law partner, Jeffrey Friedman, said prosecutors should consider the feelings of family members when deciding whether to strike a last-minute deal. "The victims' families' feelings should be taken into consideration," he said.
Mason said Friday he was determined to get the death penalty. A plea deal likely would mean sparing Sowell's life in return for a guilty plea.
Friedman said a life sentence without parole would be similar to a conviction, death sentence and Sowell dying in prison awaiting the outcome of many years of appeals. Mason's office didn't immediately respond to a request for renewed comment today....
The families' appeal for a plea deal was first reported by WEWS-TV, which said the signed petitions would be delivered to Mason's office. LaSalvia said the number of signatures and delivery schedule were "a work in progress."
Jury selection entered the second day today for Sowell, who has pleaded not guilty. The trial is expected to last several weeks. Prosecutors say Sowell lured women from his inner-city Cleveland neighborhood into his home with the promise of alcohol or drugs, then killed them. The women disappeared one by one, starting in October 2007. The last one vanished in September 2009.
June 7, 2011 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Sunday, June 05, 2011
House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run
A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:
The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....
The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.
LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.
Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...
At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.
Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.
Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.
The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.
Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."
By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.
Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...
LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.
In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.
The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."
LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."
Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."
There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.
June 5, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
Saturday, May 28, 2011
Oregon Supreme Court clarifies importance of victim rights at sentencing
As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision. Here is the start of the press report:
The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.
The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process. The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.
“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School. Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.
The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009. The high court’s ruling is its first on this issue.
This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:
The principles outlined in [US Supreme Court case] DiFrancesco resolve this case. The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy. The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense." Id. at 129 (internal quotation marks and citation omitted). However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case. The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause. "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.
The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a). Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause. Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought.
Sunday, May 15, 2011
Keen coverage of capital realities, including deals to avoid death, in Ohio
My own Columbus Dispatch today had these two notable pieces on the operation of the Buckeye death penalty:
- "Death penalty a tool for leverage; Prosecutors can use it to get something from defendant"
- "Death penalty not swift or certain, case shows"
Here is an excerpt from the first of these pieces:
The death penalty in Ohio is more than just a form of punishment -- it's a tool prosecutors rely on to get information, avoid lengthy and costly trials and to provide quick justice to families in pain. In contrast, pursuing a death-penalty case can mean decades before an execution date even is set....
Brent Yager, prosecutor in Marion County, said he believes he has a duty to seek the death penalty if the crime fits the requirements. But circumstances can change, he conceded. Sometimes, the threat of death is indeed a bargaining chip, a means to a conviction. Other times, more information simply comes to light. "As you get closer to trial, a lot can happen," he said. "You learn more about the case, you learn more about the defendant and, probably most importantly, you get to know the victim's family and you learn their wishes."
Sometimes, cost is a factor for poor, rural counties. Yager said he understands that but wishes it wasn't so. "Cost should carry the least amount of weight when choosing whether to seek a death sentence," he said. "And, in my mind, the wishes of the family should be given the most."
Citing the cost and racial imbalance, two Democratic state lawmakers want to abolish the death penalty in Ohio. Reps. Ted Celeste, of Grandview Heights, and Nickie Antonio, of Lakewood in the Cleveland area, have introduced the legislation. It likely is going nowhere in the Republican-dominated House. Still, prosecutors worry about losing the option...
Defense attorneys counter that prosecutorial leverage is no justification for the death penalty. "If we look at the death penalty as something there to extract guilty pleas more readily, I think that's a hell of a bad reason to have the death penalty," said Marc Triplett.
Iranian judiciary postpones planned "eye for eye" punishment
As detailed in this new Time piece, the "Iran's judiciary has postponed the blinding of a man as punishment for throwing acid in the face of a young woman in 2004, after she rejected his offer of marriage." Here is more on this proposed and now postponed form of retributive justice:
The delay came in the face of mounting outcry both inside Iran and in the West over the sentencing, which is permissible under qesas, a principle of Islamic law allowing victims analogous retribution for violent crimes.
The case has stirred passionate interest in Iran since 2004, when Majid Movahedi, a university student, accosted Ameneh Bahrami on a Tehran street and tossed a red bucket of sulfuric acid in her face. Bahrami, an attractive young engineer, had repeatedly spurned Movahedi's proposals and reported his harassment to the police. She was blinded and severely disfigured in the attack, and has spent the intervening years between Iran and Spain undergoing numerous unsuccessful operations to reconstruct her face and repair her sight.
Much of the public outcry in Iranian media, news websites, and blogs, surrounds the Iranian legal system, which produces such verdicts by practising an 'eye for an eye' approach to justice based on seventh century Islamic jurisprudence. These principles effectively offer victims of violent crime two legal choices, forgiveness or qesas, analogous retribution....
Speaking on the interactive television program Saturday, Bahrami said she favored a more modern course, suing for damages. "I want him to be punished foremost. But if there are human rights considerations, then I'll accept two million Euros and his life imprisonment," she said....
Bahrami, who was scheduled to herself administer the blinding drops to an anaesthetized Movahedi, learned of the delay outside the Judiciary Hospital in Tehran. Human rights groups and Western governments pleaded with Iranian authorities last week to call off the punishment. Iran's government usually responds to such foreign pressure by lashing out rather than backing off, but Bahrami's case poses a unique dilemma: unlike many human rights cases which excite opinion primarily in the West, it has resonated deeply throughout Iranian society; the attention inside Iran raises the prospect of a public backlash at a time when the regime is deeply divided by political infighting. "There's no doubt public opinion inside Iran has been stirred up," says Amini. "There's been a huge outpouring of sympathy for both of them, and this puts pressure on the government."
Thursday, May 12, 2011
California DA files suit hoping to undo controversial clemency grant
As detailed in this local piece, headlined "D.A. seeks to overturn reduced sentence of Esteban Nuñez in fatal stabbing," a county prosecutor is trying to break new lega ground by suing over a controversial clemency grant. Here are the details:
The San Diego County district attorney has filed a civil suit aimed at overturning former Gov. Arnold Schwarzenegger’s last-minute reduction of the prison sentence of the son of former Assembly Speaker Fabian Nuñez in the slaying of a college student.
On his last day in office, the governor reduced the sentence of Esteban Nuñez from 16 years to seven years. The decision was made without consulting with prosecutors in the case -- angering Dist. Atty. Bonnie Dumanis and the family of the victim, Luis Santos.
In the civil suit, announced Wednesday, Dumanis argues that Schwarzenegger had a legal obligation to notify prosecutors and the families of the victims. Santos was killed in a late-night street brawl outside San Diego State. Nuñez pleaded guilty in 2010 to voluntary manslaughter and assault with a deadly weapon.
The suit is considered the first of its kind, Dumanis said.... The lawsuit names the governor, Nuñez, the director of the state Department of Corrections and Rehabilitation and the warden of Mule Creek State Prison, where Nuñez is serving his time.
Dumanis said Marsy’s Law, meant to protect the rights of crime victims, requires a governor to notify prosecutors and family members. The civil suit could face a difficult legal precedent: that the right of governors to grant pardons and sentence reductions has been considered unlimited and not subject to review.
The governor, Dumanis said, is given that power to help correct miscarriages of justice. “Instead, this last-minute commutation made without all the facts or input from the parties only fueled the public mistrust of government and greatly diminished justice,” Dumanis said.
Though this novel lawsuit is seeking to undo a clemency decision that helped a criminal defendant, I suspect some defendants and their attorneys might like to see a ruling here that courts have authority to review and second-guess executive clemency decisions. After all, the vast majority of such executive decisions involve the denial of clemency; I am sure defendants and their attorneys who believe clemency was justified in certain cases would welcome any means or opportunity to challenge clemency denials in court.
Thursday, May 05, 2011
"The Criminal Class Action"
The title of this post is the title of this very interesting looking new piece by Adam Zimmerman and David Jaros, which is now available via SSRN. Here is the abstract:
Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud. In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence.
Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation. While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims.
We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm. However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation. We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.
Saturday, April 30, 2011
"Co-Victims Against the Death Penalty"
The title of this post is the headline of this new editorial in the New York Times. Here are excerpts:
As the country has increasingly turned against capital punishment as barbaric and horrifyingly prone to legal abuses, defenders are pointing to the emotional needs of the families of murder victims — “co-victims” to those who study crime — as justification. Many family members, however, have said they want no part of that.
When New Jersey abolished the death penalty in 2007 and New Mexico did in 2009, each did so with the support of co-victims. In Connecticut, the Legislature’s joint Judiciary Committee has now approved a bill that would repeal that state’s death penalty, again with the support of victims’ families.
The family members say that rather than providing emotional closure, the long appeals process in death penalty cases is actually prolonging their suffering. They also say it wastes money and unjustifiably elevates some murders above others in importance. In an open letter to the Connecticut Legislature, relatives of murder victims — 76 parents, children and others — wrote that “the death penalty, rather than preventing violence, only perpetuates it and inflicts further pain on survivors.”...
We do not minimize the suffering of family members, wherever they stand on the issue. But the facts are undeniable. The death penalty does not deter crime and the long history of legal abuses is well documented. Connecticut’s full Legislature should pass the repeal bill and Gov. Dannel Malloy should sign it into law.
Wednesday, April 20, 2011
Can courts really develop "some principled method" for child porn downloading restitution?
I have now had a chance to read closely yesterday's very important and very throughtful DC Circuit child porn restitution opinion in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here). The initial comments to my first post on the case spotlight how many dynamic (and circuit splitting) issues are addressed in the ruling, and I could (and might) do a series of posts on the many legal and policy issues implicated by this decision.
But there is one especially notable paragraph from the DC Circuit panel in its remand ruling that I want to spotlight and concerning which I wish to encourage collective rumination. Here is the paragraph:
On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount. Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution. The burden is on the government to prove the amount of Amy’s losses Monzel caused. We expect the government will do more this time around to aid the district court. We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.
This paragraph is fascinating because it (1) spotlights why these child porn restitution cases are so hard (the case records have "relatively little ... to guide [court] decisionmaking"), and (2) stresses the prosecution's ultimate responsibilities and burdens here (the government must "submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image" and/or "suggest a formula for determining the proper amount of restitution" in order "to prove the amount of Amy’s losses Monzel caused"), and (3) obliges the district court to come up with some sound formula for sorting all this out while aslo giving it no assistance (the circuit judges here "express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused").
As the question in the title of this post hints, I am not confident that the district court in this case (or common-law courts in general) are going to be able to develop and apply "some principled method" for determining how much harm one particular downloader of one image of a widely-distributed kiddie porn picture proximately caused to the child abused in that picture. I have been thinking about this issue for some time, and I am yet to figure out what principled method exists to link proximately the harm resulting from one particular instance of downloading/possessing this illegal image, especially given that the victim is unlikely even to become aware of that particular instance of downloading/possessing unless and until the downloader is criminally prosecuted and the government gives notice to the victim.
I certainly believe Congress could (and really should ASAP) develop and enact a rational and sound legislative formula for awards of restitution in kiddie porn downloading cases like this one. But I cannot figure out just how courts can and should develop a "principled method" of appropriately linking one particular act of illegal image possession and the resulting proximate harm to the victim in the image.
Perhaps readers have suggestions (including SC and Bill Otis and other frequent commentors who often stress victim interests); I am very eager to hear and discuss principled proposals. And I suspect the district court in this case and others facing this issue could benefit from some collective brainstorming.
Some related recent federal child porn restitution posts:
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
April 20, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack
Thursday, April 14, 2011
"Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment"
The title of this post is the title of this new article by Erin Leigh Sheley, which is now available via SSRN. Here is the abstract:
This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment.
Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society. Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame. Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.
Saturday, April 09, 2011
"Not In My Name: An Investigation of Victims’ Family Clemency Movements and Court"
Purpose: The goals of this project are 1) to document the patterns of opposition to the death penalty promoted by victims’ families following the ascendency of the retribution and closure arguments in support of capital punishment, and 2) to assess the scope and primacy of newspaper coverage of death penalty cases with anti-capital punishment covictims.
Methods: Content analysis of nationwide newspaper reports on capital offense trials from 1992-2009 is used to assess patterns of victim resistance to the death penalty over time, the reasons given for support or resistance to the death penalty, and the scope and primacy of the newspaper coverage of the capital case.
Results: The analysis reveals a significant increase in co-victim clemency movements across the study time period. Further, articles representing pro-death penalty covictims received both significantly higher primacy of media coverage in section and page number and word count than did their anti-death penalty counterparts. Lastly, a qualitative assessment of covictims' statements reveals several reasons for co-victim support or resistance to the death penalty.
Conclusions: Co-victim opposition to the death penalty in reaction to the ascendancy of retribution and closure justifications for capital punishment must be integrated into ongoing debates about the death penalty.
Saturday, March 26, 2011
Notable media coverage of Fifth Circuit Amy child porn restitution ruling
The biggest development in sentencing jurisprudence this past week was the Fifth Circuit's fascinating (and suspect?) ruling that no proximate causation showing is needed to support a restitution order in the child pornography downloading case known as In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here). Consequently, I am pleased to see from this new AP article, headlined "Legal experts: Ruling benefits child porn victims," that the traditional media is taking note of the Fifth Circuit's decision (which I first discussed here).
Here are excerpts from the lengthy and effective AP piece:
Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case. But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.
The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution. Other national appeals court rulings, including in Georgia and Montana, have upheld restitution awards against individuals convicted of possessing child pornography. But those courts interpreted federal law to require that victims show a more direct connection between what a defendant did and the harm victims suffered.
"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling. "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."... The 5th Circuit's decision reverses a previous decision by a different panel of the same appeals court that had ruled against Amy, who is now in her early 20s.
Stanley Schneider, Paroline's attorney, said he planned to appeal the ruling to the full appeals court and if needed to the U.S. Supreme Court. "If a person is selling pornography ... or distributing the image, that is (one) question," he said. "But if someone is sitting and doing nothing more than looking at images, possessing them, there has to be a causal connection" for the harm they have allegedly caused a victim. Schneider said Amy did not know beforehand that Paroline had seen images of her.
[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them. "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.
Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country. The U.S. Attorney's Office for the Eastern District of Texas, which prosecuted Paroline and opposed Amy's appeal, declined to comment.
Under the law, victims of child pornography can be awarded restitution. But federal judges around the country have had varied interpretations of the restitution statute, with some awarding large amounts, others nominal amounts and others denying it altogether. "Do I think it resolves the issue? As an advocate, I hope it resolves it. But it will eventually make its way to the Supreme Court," said Meg Garvin, executive director of the National Crime Victim Law Institute, located at Lewis & Clark College's School of Law in Portland, Ore.
Some related recent federal child porn restitution posts:
- Second Circuit blesses future medical expense restitution in child porn sentencing
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
March 26, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Wednesday, March 23, 2011
Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
As Paul Cassell details in this post at The Volokh Conspiracy, on Tuesday "the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory [by accepting Paul's] arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded. As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime."
As Paul further explains, the Fifth Circuit's ruling in In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here), if "followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive." But, as noted in this prior post, the Eleventh Circuit in another case a few months ago, US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), decided there was a proximate cause limitation on whether and when a victim can obtain restitution in these sorts of child porn downloading cases. (Notably, McDaniel cites a prior ruling in the Amy case, but this new Amy Unknown ruling does not mention McDaniel.) It is not clear that the conclusions reached Amy Unknown will carry the day in other circuits, but it is now even clearer that the US Supreme Court will have to take up this issue before too long.
The Fifth Circuit opinion in Amy Unknown is authored by Chief Judge Edith Jones, and it starts and ends this way:
“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet. Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009). This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA. Consequently, Appellant’s petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline...
Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the CVRA. We therefore GRANT Amy’s petition for panel rehearing and likewise GRANT her petition for a writ of mandamus. Because the district court did not quantify the amount of restitution to which Amy is entitled or the fraction attributable to Paroline, the case is REMANDED for resolution of that issue.
Some related recent federal child porn prosecution and sentencing posts:
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
Victim complains about Lawrence Taylor getting probation for sex crime
As detailed in this USA Today piece, the "underage girl who Lawrence Taylor admitted having sex with before a guilty plea to a sex charge said Tuesday that the sentence of probation given to the Pro Football Hall of Famer was too lenient." Here is more:
The girl -- whom USA TODAY will not identify -- told reporters after Taylor was sentenced to six years probation in a New York court that she wanted to see him got to jail. "I am not a prostitute," she said. "I am a victim and I am hurting. I don't think the sentence given to Mr. Taylor is fair."
The girl was a runaway who was sent into a hotel room with Taylor in May 2010. Prosecutors have charged Rasheed Davis with being the pimp that sent the girl into Taylor's hotel room. The Hall of Famer admitted paying $300 for sex.
This AP piece provide more details about the sentencing and details that Taylor's probation term in six years and that he must register as a sex offender.
Friday, January 28, 2011
Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
An Eleventh Circuit panel has an important ruling today in US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), concerning the federal law and practice of imposing restitution terms in sentences for downloaders of child porn. Here is how the McDaniel opinion begins along with some of the key legal determinations within the opinion:
Ricky Lee McDaniel was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). The district court sentenced him to 60 months of imprisonment and three years of supervised release and ordered him to pay restitution to “Vicky,” a child depicted in one of his images. McDaniel asks whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution. For the following reasons, we affirm....
First, we agree with the district court that McDaniel “harmed” Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor.... Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child’s privacy by possessing their image. All of these harms stem directly from an individual’s possession of child abuse images. Thus the district court did not err in finding that Vicky was a victim of McDaniel’s possession of child pornography, and consequently, that she is eligible for restitution under section 2259....
Next, we hold that section 2259 limits recoverable losses to those proximately caused by the defendant’s conduct.... [T]he plain language of section 2259 ... covers, inter alia, “losses suffered by the victim as a proximate result of the offense.” § 2259(b)(3)(F)....
McDaniel next argues that his conduct did not proximately cause Vicky’s harm. Instead, he contends that her father and the distribution of the images caused her harm, and by the time he possessed the images, the harm had already been done. He asserts that restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.
We disagree. Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.” We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).... Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.
As a policy matter, I favor child porn downloaders having to pay some restitution to the children harmed and depicted in the pictures they download. And, in this case, "the court ordered McDaniel to pay Vicky $12,700" to help cover the costs of therapy for Vicky, which does no seem like an unreasonable award under the circumstances. But, for two reasons articulated below, I am struggling somewhat with how the McDaniel opinion gets to its ultimate conclusions on proximate cause in order to affirm the restitution award imposed by the district court.
1. As the explained in the opinion, Vicky was notified that McDaniel had downloaded her picture onlybecause the "National Center for Missing and Exploited Children (NCMEC) compares images and identifies the children depicted within [and] notifies an identified victim every time someone is arrested who is found to possess his or her image [and] the Government submitted McDaniel’s collection of images and videos to the NCMEC for identification of known victims after McDaniel’s re-indictment in June 2008." In other words, Vicky would never have known McDaniel had possessed her picture but forthe feds submitting the picture to the NCMEC andthe NCMEC altering Vicky that yet another person had her picture. In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as "breaking the chain" of causation between McDaniel's offense of possession and the "slow acid drip" harms she experiences.
2. Relatedly, given that "Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys’ fees," and given that a witness testified that "Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet," it is unclear how the district court decided the restitution award here should be $12,700. Why not an award of the full amount of the cost of her future therapy? Alternatively, why not find out from the NCMEC how many times they have notified Vicky about her picture (which I suspect is hundreds, if not thousands, of times), and apportion the award accordingly?
Intrguingly, in a footnote to support its holding that proximate cause is required, the McDaniel opinion cites a key Fifth Circuit ruling to stress that "if there was 'no proximate cause requirement in the statute, a restitution order could hold an individual liable for a greater amount of losses than those caused by his particular offense of conviction.' In re Amy, 591 F.3d 792, 794 (5th Cir. 2009)." In turn, shouldn't the Eleventh Circuit be worried that requiring McDaniel to pay $12,700 for possessing a picture that hundreds (and perhaps thousands) of persons have possessed does not in fact make liable for a greater amount of losses than those caused by his particular offense of conviction? (McDaniel may not have appealed the amount of restitution awarded, but lots of district court have struggled and split over these issues that quickly get implicated once proximate cause is held to be a required showing.)
Friday, January 21, 2011
Victims sue in California to try to undo controversial commutation by former Gov Schwarzenegger
The notable controversy in California over a last-day commutation by the last governor has taken an interesing legal turn, which is detailed in this Los Angeles Times piece headlined "Family sues Schwarzenegger over commutation of Nuñez's sentence; The parents of Luis Santos, the 22-year-old who was stabbed to death in a confrontation with the son of former Assembly Speaker Fabian Nuñez, claim the ex-governor violated California's Victims Bill of Rights." Here are the details:
The parents of Luis Santos, a 22-year-old college student killed in a confrontation with the son of former Assembly Speaker Fabian Nuñez, filed suit against former Gov. Arnold Schwarzenegger in Sacramento on Thursday, claiming that his decision to reduce the younger Nuñez's sentence violated California's Victims Bill of Rights.
During his last hours in office, Schwarzenegger cut Esteban Nuñez's 16-year sentence for voluntary manslaughter to seven years, without notifying the Santos family. Schwarzenegger noted in his commutation order that Nuñez, although involved in the fight that ended in Santos' death, did not inflict the fatal knife wound.
Under the Victims' Bill of Rights, which was added to the state Constitution following a 2008 ballot measure, victims have a right to be heard "upon request" in any proceeding involving a "post-conviction release decision." One of the Santos attorneys, Nina Salarno Ashford, said the family members didn't have a chance to request a hearing because they didn't know Schwarzenegger was going to take action. The former governor had a duty to inform the family, Ashford said....
Days after releasing the commutation order, Schwarzenegger sent the Santos family a letter apologizing for not informing them of his decision. Fred Santos, the victim's father, accused Schwarzenegger of reducing the sentence as a favor to Fabian Nuñez, who as Assembly Speaker was often an ally of the governor's.
The suit asks the court to reinstate Nuñez's original 16-year sentence, which a San Diego judge imposed after a plea bargain that reduced the original charge of murder to the lesser charge of voluntary manslaughter.
Monday, January 17, 2011
Notable report on latest developments in federal restitution awards in child porn downloading cases
The Wall Street Journal has this notable new piece , headlined "Fed prosecutors in NY get child porn restitution," reporting on some recent developments in the long-running saga concerning the awarding of restitution in child porn sentencings. Here are excerpts:
Federal prosecutors intent on stemming child pornography and helping care for its victims are increasingly going after the assets of offenders under an evolving change in Justice Department policy.
In one of the most recent cases, a former provost marshal at the U.S. Army's sprawling Fort Drum in northern New York was sentenced to almost six years in prison for possessing and sharing child pornography and will soon pay $10,000 each to two victims identified from among more than 700 images of children he had. The payments are meant to deter sharing images of exploited children and to help pay for their later psychiatric or other treatment, authorities said.
Federal prosecutors said there are thousands of cases nationally, the crime proliferating with the Internet. There are 163 open matters now in the Northern District of New York, ranging from criminal appeals to initial investigations that may become cases....
Assistant U.S. Attorney Lisa Fletcher prosecutes child porn cases almost exclusively, with another assistant at the Syracuse office assigned to help with the backlog. Federal prosecutors in three other offices are likewise busy, with ongoing federal investigations and referrals from county district attorneys. "We're getting more and more people with hands-on offenses and more and more people trying to meet underage kids," Fletcher said.
According to the Justice Department, its project against exploitation of minors has increased prosecutions 40 percent since 2006, with 2,315 indictments filed against 2,427 defendants in 2009 and almost 9,000 charged altogether over four years. More than 3,000 victims of child pornography crimes were identified, with many rescued....
While some offenders have challenged restitution, which began almost two years ago, and courts are still sorting out how to handle it, Butler agreed to pay $10,000 to each identified victim, Fletcher said. One, now 19, was rescued from an abuser at age 11. "Her picture is all over the Internet," the prosecutor said.
Defense attorney Thomas Cerio said Tuesday the payments are being processed. He said that Butler, married with children, expressed remorse at sentencing, for the victims and for letting his family and the country down. Butler also lost his pension. He wasn't producing pornography, Cerio said....
In other cases around the country, judges have approved victim payments ranging from $1,000 to $200,000. Prosecutors in North Dakota decided in September to appeal U.S. District Judge Ralph Erickson's rejection of nearly $3.7 million in restitution to two victims by Robert Scheiring. He was sentenced to 14 years in prison on charges of distribution and possession of child pornography. Authorities said they found more than 600,000 pictures and 2,400 videos.
"The main issue is taking a young child who is abused or photographed or videotaped. The videotape is passed around the Internet. How do you calculate the damage to that young child as the image is viewed?" [Assistant U.S. Attorney William] Pericak said. "Suppose it's viewed by 100 or 1,000 or 150,000 people. Is there extra damage from each viewing?"
Prosecutors and victim advocates say that there clearly is harm done. The children grow up and wonder if the people they meet have seen the images. Some will end up with hundreds of thousands of dollars in psychiatric, psychological or other treatment bills from the trauma of abuse.
Some related recent federal child porn prosecution and sentencing posts:
- More examples of sentencing uncertainty surrounding federal child porn cases
- "Prosecutors seek nearly $200k for child porn victim"
Monday, January 10, 2011
Father of slain 9-year-old in Tucson calling for execution of shooter
As detailed in this New York Post article, which is headlined "Father of child killed in Giffords rampage wants death penalty," at least one victim of the shooting rampage this weekend in Arizona is already calling for the ultimate punishment for the offender:
Devastated by the death of his only daughter in the bloody ambush on Rep. Gabrielle Giffords, John Green — son of former Mets manager Dallas Green — today lashed out at the crackpot killer. "I think they should execute him," said a broken-hearted John Green, whose 9-year-old child Christina Taylor was fatally shot when crazed gunman Jared Loughner, 22, opened fire at a political meet-and-greet hosted by Giffords yesterday.
Giffords was critically wounded in the attack; Christina and five others at the event were killed....
The devastation has been overwhelming, John Green told The Post, unable to hold back tears. "She was born on 9/11, so when you look at the bookends of her life, they were pretty tragic," he said. "But everything in the middle was the best."...
The grieving dad [said] his daughter loved baseball, dancing, swimming and horseback riding. He feels nothing but disgust for the shooter who ended her life. "It would be a waste of millions of dollars" to keep him alive, he said. "They should use the money to help kids in school instead of some idiot."
As this long article in the Politico details, John Green's wish may get fulfilled. The piece is headlined "Federal charges could carry death penalty."
Wednesday, December 01, 2010
"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"
The title of this post is the title of this interesting book chapter by Professor Justin Holbrook. Here is the abstract:
In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court. For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.
First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat. Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators. Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma. This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.
Saturday, November 13, 2010
"An unusual sentence aims to make a killer remember his victim"
The title of this post is the headline of this interesting and moving article from the St. Petersburg Times. Here are excerpts:
The call came at 8 p.m. A 19-year-old driving a Honda Civic had lost control and gone off the road. He over-corrected, the state trooper said, and smashed into Thomas [Tower] Jr.'s car. The impact ejected Thomas Jr., who fell into a field.
"By the time we got there, he was gone," [his father] said. Thomas Jr. was 28. The other driver, Andrew Gaudioso, was airlifted to a hospital where he spent four months in a coma. "We waited," Towers said. "But that kid was never charged."
Six months later, after Gaudioso was released from the hospital, Towers drove to the highway patrol station and demanded to see the wreck report. Gaudioso hadn't been drinking, the report said. But a blood test showed drugs in his system.
In an interview, prosecutor Sara Jane Olson wouldn't say what the drugs were, but Towers said he was told one was marijuana. "This kid got high and drove and killed my son," Towers said. "My son, who protected our freedom and fought for our country, died a mile from my home."
In April 2009, officers charged Gaudioso with vehicular homicide. His trial was supposed to start this month. But his lawyer, Laura Hargrove, asked to have the case dismissed. "There was a huge problem with the way they calculated his speed," she said.
Prosecutor Olson could have asked for an 8-year prison sentence for Gaudioso, but that wasn't what Towers wanted. "I didn't want him sitting there in the air-conditioning, watching TV on the taxpayers' dollars. And I sure didn't want to risk him going free."
He wanted to hear Gaudioso say he was sorry for all the pain he had caused. "I want him to apologize to my family — every week," Towers remembers telling the assistant state attorney. "I want him to remember, for the rest of his life, that he killed my son."
Gaudioso did not respond to interview requests for this story, but his lawyer said he was happy with the plea agreement. "He didn't want to go to prison." The defense attorney proposed postcards instead. One a week, for 15 years. That's 780 postcards.
"The only way I could keep my client out of prison was to come up with something creative," Hargrove said. "We didn't mandate what he had to say. Only that he has to send the postcards."
On Oct. 14, Lake County Circuit Judge G. Richard Singeltary signed off on the unusual plea agreement. He sentenced Gaudioso, 22, to 15 years of drug offender probation, during which he can't drink or use drugs. He also revoked his driver's license for five years and ordered him to pay $815 in fines.
And Gaudioso has to "mail a postcard to the victim's family via probation every week while on probation." If Gaudioso doesn't send one, he will serve the rest of his 15 years behind bars.
Radio stations and wire services across the country carried news of the sentence. Internet users discussed it on blogs from "simplejustice" to "Harrypottering." Everyone seemed surprised the victim's family would agree to let his killer go free. To Towers, the best punishment is to make the killer pay penance. "I need to know that he cares that he killed my kid."
Thursday, November 04, 2010
"Memory and Punishment"
The title of this post is the title of this interesting looking new piece from O. Carter Snead that is now available via SSRN. Here is the abstract:
This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.
For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community. Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment. This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.
Wednesday, November 03, 2010
Ninth Circuit adopts invented exception to victims' right to restitution
A helpful reader altered me to an interesting little unanimous panel opinion from the Ninth Circuit today in US v. Lazarenko, No. 08-10185 (9th Cir. Nov. 3, 2010) (available here). Here is how the opinion starts:
Defendant Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine, was convicted of money laundering and conspiracy to commit money laundering. See United States v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009). In this appeal, Lazarenko challenges the district court’s order of restitution of more than $19 million to his co-conspirator, Peter Kiritchenko. We hold that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution. Because no exceptional circumstances exist here, we reverse and vacate the order of restitution.
This Lazarenko ruling acknowledges that it is making up law here when the plain text clearly does not exclude certain types of victims from the right to obtain restitution:
[Applicable victim restitution statutes set forth a] definition [that] looks only to whether the person was harmed; it does not consider whether the person also was a co-conspirator. Under the plain text of the MVRA and VWPA, therefore, co-conspirators have just as much right to restitution as do innocent victims.
But courts have recognized that Congress could not have intended that result. Otherwise, the federal courts would be involved in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators may have cheated their comrades. Indeed, the Second Circuit has held that an order of restitution from one co-conspirator to another was “an error so fundamental and so adversely reflecting on the public reputation of the judicial proceedings that we may, and do, deal with it sua sponte.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); see also United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (suggesting that it would be improper to consider a participant to a crime as a victim of the crime for purposes of restitution). In other words, because a literal application of the plain text leads to absurd results, the plain text does not control.
We agree with the Second Circuit that, as a general rule, an order of restitution to a co-conspirator is a “fundamental” error that “adversely reflect[s] on the public reputation of the judicial proceedings.” Reifler, 446 F.3d at 127. Indeed, we suggested the same in Weir, 861 F.2d at 546. Only in exceptional circumstances would Congress have intended that a coconspirator to a crime be entitled to restitution.
I wonder if all committed textualists (including some on the Supreme Court), as well as all those committed to broad interpretations of victim rights, fully concur with the Ninth Circuit's decision in Lazarenko to invent an exception (with its own exception circumstances exception) to the plain term of the federal statutes providing for victim restitution.
To me, it is not obviously absurd that a federal offender's punishment should include a requirement of restitution to all victims financially harmed even if those victims are co-consiprators. Indeed, the rule adoped here would seem to give major fraudsters a tangible incentive to seek to co-opt their biggest victims into their frauds if/when they start fearing apprehension so as to reduce the risk of owing those victims restitution if/when convicted.
November 3, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Friday, October 22, 2010
"Mini-Madoff" gets mini-sentence that should still be a functional life sentence
As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday. Here are the basic details:
Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.
Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.
"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois. "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."
Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment. But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...
Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said. "I blame only myself for my acts."
His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.
I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence. But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.
Sunday, October 17, 2010
"A Distributive Theory of Criminal Law"
The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review. Here is the abstract:
In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.
This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.
Thursday, September 23, 2010
Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvementA helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings. The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:
Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines. Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing. Because we find that the District Court did not abuse its discretion, his petition is DENIED.
The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.” Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.” Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office. Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.
The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case." In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom. But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.
Tuesday, September 21, 2010
"State Crime Victim Recoveries"The title of this post is the title of this interesting-looking new paper available via SSRN on state victim restitution policies and practicalities. Here is the abstract:
Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously. These avenues often, but not always, have constitutional as well as statutory foundations.
Unfortunately state crime victims often go without recovery. Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing. Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases. Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.
Monday, September 20, 2010
Plea deal lets Virginia quadruple-murderer escape death penalty (with approval of victims' relatives)
This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:
The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison. Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.
McCroskey, who could have faced the death penalty, was sentenced to life in prison. He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.
Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings. McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.
Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty. "What it really means is death in prison," Ennis said after the hearing. "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."
Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible. "He's left families without their loved ones," Bowen said. "There are four people dead here. He's not proud of that." He said McCroskey is remorseful and has contemplated the severity of what he did.
A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure." They also thanked police and everyone who supported them. "We have endured a tragedy of unspeakable proportion," the statement reads. "We are relieved that justice has been done. While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."
In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case. And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.
The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week. Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here). Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.
Thursday, September 16, 2010
Restitution terms debated in another federal child porn downloading sentencingAs detailed in this new article from the Kansas City Star, which is headlined "Long prison sentence, restitution sought in child porn case," federal district court around the country continue to confront the challenging and unsettled issue of whether and how they can and should order restitution as part of a federal sentence for downloading certain child pornography pictures. Here are the particulars:
The nightmare never ends for the young woman known around the world as “Vicky.” Every day, new letters arrive in her mailbox informing her that another man has been arrested for having on his computer pornographic images of her being raped as a child.
One of those men was in a Kansas City courtroom Wednesday to face sentencing for receiving and possessing thousands of images of child pornography, including a nearly two-hour video of Vicky being abused as a 10-year-old.
William Harold Laursen, a former music teacher at two area schools, last year pleaded guilty to the charges. On Wednesday, federal prosecutors sought not only a lengthy prison sentence but an order for Laursen to pay restitution to Vicky.
U.S. District Judge Howard Sachs took the matter under advisement after a morning of testimony, including how the videos of Vicky’s abuse at the hands of her father are some of the most widely disseminated child pornography images on the Internet.
“There’s no end to it,” said Randall Green, a psychologist who has examined the now-20-year-old woman in the Vicky series of images. “She feels she is serving a life sentence.” Not only must she deal with the trauma of being sexually assaulted by her father, but she must live with the knowledge that thousands of others have seen her being abused, Green said. She suffers from myriad psychological problems that will require a lifetime of therapy, and she continually is fearful that people she encounters may recognize her from the videos, he said.
Though she lives in another state and did not attend Wednesday’s hearing, prosecutors have provided her written statement to the court. “Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them,” she said. “It terrifies me that people enjoy viewing things like this.”...
Seeking restitution for child pornography victims from those who download and disseminate their images is relatively new. To date, various courts have ordered about $44,000 in restitution to Vicky, according to a statement from her attorney.
Vicky is not her real name, but some downloaders of her childhood images have learned her real name and have attempted to contact her, Green said. One even created a video called “Where’s Vicky Now?” and combined current images of her with the pornographic images from her childhood, he said.
Laursen, 57, of Kansas City, formerly taught at Kansas City Academy and at CS-1 School in Prairie Village. He did not testify during Wednesday’s hearing in U.S. District Court in Kansas City. His attorney, Tom Bath, pointed out in his questioning of witnesses that there were no allegations or evidence that Laursen ever touched a child inappropriately.
I am deeply saddened by the fact that "Vicky" still suffers greatly as a result of her sexual abuse and the continued circulation of images of her victimization, and I would readily credit the psychologists assertion that "there’s no end" to the harms that "Vicky" continues to endure.
But this reality makes the legal debate over restitution in child porn downloading cases even more challenging. If there is no end to the harms that Vicky is suffering, should there likewise be no end (either temporally or monetarily) to her ability to collect restitution award from any and every defendant who has ever downloaded her pictures?
Some related recent federal child porn restitution posts:
Friday, August 27, 2010
Debate in Hawaii over how tough to get on drunk drivers who killThis local story from our 50th state, which is headlined "Prosecutors, defense attorneys spar over sentencing of deadly drivers," highlights that sentencing judges are sometimes inclined to give a break to drunk drivers even when they kill. Here are excerpts:
Honolulu prosecutors on Wednesday unsuccessfully sought a 15-year prison term for the driver responsible for a deadly crash in Mokuleia four years ago. It was the latest in a string of sentencing disappointments for them and the families of crash victims.
We've seen it many times now -- a tearful plea by a person whose loved one was killed in a crash involving drunken driving and/or excessive speeding. "I really wish you would think really hard on the sentence," Joyce Somera, victim's sister, told the judge at a sentencing Tuesday.
Often, a family's loss is compounded by a seemingly lenient sentence for the driver responsible. Keanan Tantog killed a person and injured another, and received probation and a one-year jail term.
Tyler Duarte took two lives, and was sentenced to probation and 18 months in jail. Billy Lamug -- who wasn't intoxicated but was excessively speeding -- killed two people and injured a third. He was sentenced to probation and community service.
"Each one of these families have lost somebody that they've loved forever," Douglas Chin, acting city prosecutor, said. "What's too bad is it seems like the court is more often taking into consideration what's happening for the defendant."
A judge sitting on a standard second-degree murder case has no discretion. It's a mandatory life sentence for that intentional killing. But in a vehicular homicide, whether negligent or reckless, a judge has discretion and must consider several factors, including the defendant's criminal history. If there's no prior record, the driver will likely sidestep the maximum prison term -- even if alcohol was involved in the deadly crash.
"In these cases, a judge is faced with a situation where a good person is dead, but a good person's life now also hangs in the balance," Victor Bakke, defense attorney, said. "The judge's job is not revenge."
"The argument that they've never done it before, it's never happened, doesn't hold much water with me because the fact is they've done it now," Sen. Sam Slom, Senate Judiciary Committee member, said. Slom says a decade ago, very few of these drivers went to jail at all. But since then, the laws have become tougher. In light of the recent sentences being handed down, he says the committee should revisit the issue next session.
Tuesday, August 17, 2010
"3rd trip to Texas death chamber for grieving dad"
The title of this post is the headline of this notable local article from Texas providing a notable perspective on one victim's view of the administration of the death penalty in a high-profile case:
Randy Ertman knows the road to the Texas death chamber too well. He’s set to make the trip again, to witness for the third time the execution of one of the gang members responsible for the rape and murder of his teenage daughter and her schoolmate.
This time, it will be the lethal injection on Tuesday of Peter Anthony Cantu, the leader of the five young men who were sentenced to die for the June 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena.
It’s not lost on him that Cantu has lived in prison longer than Jennifer and Elizabeth were alive. “He should have been hung outside the courthouse,” Ertman said in an interview with The Associated Press. “I don’t mean this in a gruesome way, but if they want to make the death penalty a deterrent, up in front of (Houston) City Hall, they’ve got all these beautiful trees. They should have hung them. If they hung all five of them, that would be a deterrent.”...
The case horrified Houston. Nearly two decades after friends and relatives frantically distributed flyers offering a $10,000 reward for help finding the teenagers who failed to return home from a summer pool party, prosecutor Donna Goode still has one in her office. “Two beautiful young girls,” Goode says. “I think about them.”
Their battered and decomposing bodies, left to mummify in a wooded field in the relentless heat of Houston’s summer, were found four days after they disappeared. “They become everybody’s daughter,” recalled Don Smyth, a retired Harris County assistant district attorney who had helped prosecute Cantu. “Parents always worry about their kids, especially their daughters.”
Of the six people convicted, five were sentenced to death. Two who were 17 when the girls were killed were spared the death penalty when the U.S. Supreme Court barred execution of people who were under 18 when they committed their crimes. The person not sentenced to death, 14 at the time, got a 40-year sentence.
Two of Cantu’s companions in the gang they dubbed the Black and White preceded him to the death chamber. Ertman made the drive here four years ago for the first execution. Derrick O’Brien, belted to a gurney, looked through the death chamber window at Ertman and other relatives of the girls and called his involvement “the worst mistake that I ever made in my whole life.” Seven minutes later, O’Brien was dead.
In August 2008, Ertman again climbed the steps to the red-bricked Huntsville Unit prison. Mexican-born Jose Medellin, 33, with needles in his arms, also apologized. Nine minutes later, he was dead.
Ertman rejected an invitation from Cantu’s lawyer to come to his office and read a letter of apology from Cantu. “It’s a little late,” Ertman said. “I told him to stick it. Hell, no.”
Thursday, August 12, 2010
Victim requests restitution, so judge orders 21 years(!) of house arrestA helpful reader altered me to this notable local sentencing story from Philadelphia, which is headlined "Philadelphia-area thief gets 21 years house arrest." Here are the fascinating details:
An office manager who admitted stealing $475,000 from her employer has been sentenced to 21 years of house arrest so she can work to repay it. Lanette Sansoni's unusual sentence came after her ex-boss said he was more interested in restitution than jail time, her lawyer said.
"This was just a creative compromise," defense attorney A. Charles Peruto Jr. said Thursday. "I think it will encourage her to pay it off, so the judge was pretty smart about it."
Peruto, a veteran defense lawyer in the region, guessed the two-decade term may be a record for house arrest in Pennsylvania. State officials could not immediately confirm that.
Sansoni, 40, has repaid about $275,000 after selling her home in Warminster, just north of Philadelphia, and moving in with her mother. She will remain on house arrest until the remaining $200,000 is repaid to Kenneth Slomine, who owned JRS Settlement Services, a title company in Lower Moreland Township.
Montgomery County Judge Joseph A. Smyth on Wednesday set a payment schedule of $750 a month, which works out to about 21 years. Sansoni can leave home to work but could go to jail if the payments stop. She has a job paying $700 a week, Peruto said, but he wouldn't disclose what it is.
Prosecutors had argued for incarceration for Sansoni, who also served as a title clerk at JRS before it went bust because of her theft. "This is a case that just cried out for jail time," said Assistant District Attorney Steven Bunn, who called Sansoni's crimes "egregious."
"She's not stealing to make ends meet," Bunn said. "She was buying luxury vacations, designer handbags, designer jewelry, and basically living the high life while this company went under."...
Peruto said he expects Sansoni to pay off the debt early and be released from house arrest. "I wouldn't be shocked," he said, "if it was paid off in a couple of years."
Wednesday, August 11, 2010
Another significant federal child porn restitution decision from NDNY district courtRegular readers know that the issue of whether child porn downloaders should have to pay restitution to the victims portrayed in the pictures they possess has divided federal district courts. Another such decision and its import is highlighted in this new New York Law Journal piece, which is headlined "Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim: Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images." Here are excerpts:
A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.
Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."
While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.
His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8. The magistrate judge said the matter was a case of first impression in the 2nd Circuit....
Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit. He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded....
Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh. Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.
"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue." Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.
Some related recent federal child porn restitution posts:
Monday, August 09, 2010
Is Ohio (and the common law) not tough enough on negligent vehicular homicide?The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month. The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:
Richard Crabtree was killed Feb. 1 in a car accident. He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.
The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.
"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.
Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington. The light turned red.
"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said. "You have the right to clear that, once everything's stopped. The other vehicle, for whatever reason, ran the red light."
The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.
Tirpak never accepted blame for the crash, Fridley said. He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him. "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.
Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license. A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.
In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine. Judge David P. Sunderman found him guilty in Delaware Municipal Court.
Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation. He also was fined $1,000, sentenced to community service and lost his driver's license for five years.
"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.
When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding. She could make peace with that. But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....
Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio. Ruffing would not speak about the Tirpak case in any detail. He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....
Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets. She can expect only $12,500 from his insurance company.
There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy). But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges. [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[
Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident. [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.] That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules. If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.
UPDATE: In response to helpful comments, I have tweaked the commentary in this post to be more accurate. Most of the tweaking appears in brackets above.
STILL MORE: I see that Scott Greenfield has an interesting new post here at Simple Justice discussing this case.