Thursday, June 27, 2013
SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courtsAs reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:
In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.
The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)
Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review. But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing. Here is how the Justices' teed-up the issue in Paroline for consideration next term:
The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.
I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.
Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography. But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.
Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline. Will these lawyers get a chance to argue before SCOTUS in Paroline? Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court? Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?
Wednesday, June 26, 2013
By wishing for end to legal proceedings, are Ariel Castro's victims urging a plea deal and no death penalty trial?The question in the title of this post is my reaction to this new story, headlined "'Sordid details': Ariel Castro's alleged kidnapping victims want case to be over," coming today from the high-profile Cleveland kidnapping case. Here are the basics:
The three young women allegedly held captive for a decade in a Cleveland home where they were raped and tortured want to get the case to court as quickly as possible, their attorneys said on Wednesday, adding that they want “this whole thing behind them.”
Amanda Berry, Gina DeJesus and Michelle Knight escaped Castro’s home on May 6 after Berry broke through a front door and screamed to neighbors for help. “The longer this process lasts, the more painful it is for them. And the more sordid details of this horror that get disclosed in this process, the more painful it is for them,” attorney Kathy Joseph, who is representing Knight, said in a statement....
“Again, they have faith in the process, but the simple, honest truth is they would like it to be over,” said James Wooley, attorney for Berry and DeJesus. “They want this whole thing behind them. Any date by which this may end is like light at the end of a tunnel.”
Ariel Castro has pleaded not guilty to 329 charges including kidnapping and rape. On Wednesday, Judge Michael Russo in Cuyahoga County ordered Castro to undergo a competency evaluation regarding his ability to understand the trial proceedings and work with his attorney. Castro spoke twice during the 10-minute pre-trial hearing on Wednesday, both times affirming that he understood the judge.
As everyone who follows capital cases should know well, the most certain way to ensure that the prosecution of Ariel Castro does not get resolved quickly would be for the District Attorney to serious pursue a death sentence and to refuse to engineer a plea deal including a lesser sentence. I have to believe the victims and their attorneys understand this, and thus I also believe that these new statements on behalf of the victims are, in essence, a request to key prosecutors to get to work on a quick plea deal to bring a form of closure to the legal proceedings ASAP.
Recent related posts:
- Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
- Cleveland police report supports Aggavated Murder capital charges against Ariel Castro
- "Why Might the Cleveland Kidnapper Get Charged With Murder?"
- Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro
- "Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"
Saturday, June 08, 2013
DOJ unveils new plans and programming for helping crime victims
As reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century." Here is more from the press release about this interesting and positive development:
Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.
“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”
Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not. The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues. It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.
The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage. Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:
Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require access to legal services and professional legal representation at tribal, state, and federal levels. CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”
The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court. Funding for the OVC demonstration project ended in 2009. Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed. The full promise of CVRA was not realized, although the many legal issues facing crime victims remain. Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.
Wednesday, May 08, 2013
Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
Like perhaps many others, I have feelings ranging from horror to disgust to macabre interest as facts emerge from Cleveland concerning the many awful crimes committed on at least three young women for a decade. This USA Today story provides just a small flavor of what the victims may have endured for years upon years upon years:
Cleveland police say they'll delay "deep questioning" of Amanda Berry, Gina DeJesus and Michelle Knight as they get acclimated to their families and freedom. While the three appear to be in good health, a disturbing tale of sexual assault, physical abuse, bondage and other horrors is already emerging....
The Castro brothers allegedly forced all three women to have sex, resulting in up to five pregnancies, according to a report by Cleveland's WKYC-TV. The station, quoting unnamed law enforcement sources, reported that the Castros also beat the women while they were pregnant, with several unborn children not surviving....
A law enforcement official said there is some evidence that the victims were held in chains during at least part of their captivity. The official, who is not authorized to comment publicly, did not elaborate on other conditions of their confinement or whether they were ever moved from the home.
In addition, Khalid Samad, a former assistant safety director for the city, said law enforcement officials told him that the women were beaten while pregnant, with unborn children not surviving, and that a dungeon of sorts with chains was in the home.
I cannot help but wonder if the Supreme Court's decision to categorically precluding consideration of the death penalty for even repeat and aggravated child rape in its 2008 Kennedy opinion might well have come out differently had this horrific Cleveland story been known at that time. Perhaps because I am a blood-thirsty SOB or just because I know what kind of justice I would want if someone abducted and sexual tortured my children in a dungeon for a decade, my guttural first sentencing thought in this case is some regret that a team of men who rape and torture young girls for over four presidential administrations cannot even face the prospect of our ultimate punishment for these kinds of crimes.
That said, as the title of my post here hints, Ohio law might provide a real and realistic basis to purpose a death penalty charge if there is significant evidence showing that the offenders, through physical abuse and forms of torture, "purposely ... cause[d] ... the unlawful termination of another's pregnancy." If the defendants beat their victims with an intent to cause them to miscarry, they could well be prosecuted in Ohio with Aggravated Murder pursuant to Ohio Revised Code 2903.01(B).
Of course, a lot more facts are going to need to be known and analyzed before anyone should jump to the conclusion that capital murder charges are possible in this high-profile case. But because Ohio's statutes expressly reference "unlawful termination of another's pregnancy," I would expect and certainly hope that local prosecutors are already thinking about bringing homicide charges as well as rape and kidnapping charges in this case. Ohio's legislators, by having amended the state's Aggravated Murder provisions to expressly included purposely causing the unlawful termination of another's pregnancy, indicated an interest in the possibility that the "worst of the worst" sorts of "pregnancy terminators" should possibly face the death penalty. Based on the facts so far known, I feel very comfortable asserting that the defendants in Cleveland are likely among the "worst of the worst" sorts of "pregnancy terminators."
May 8, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (26) | TrackBack
Tuesday, May 07, 2013
"The Case for Full Restitution for Child Pornography Victims"The title of this post is the title of this new paper on SSRN co-authored by Paul Cassell, James Marsh and Jeremy Christiansen concerning an issue that has riven the federal circuit courts and seems destined for SCOTUS consideration before too long. Here is the abstract:
This Article explores the issues of restitution to the victims of child pornography and other federal sex offenses in depth and contends that Congress meant what it said in Section 2259 — specifically that child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them. This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses. Requiring defendants to pay for the full amount of the losses that they have caused will address the significant financial losses suffered by child pornography victims.
May 7, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack
Friday, May 03, 2013
How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.
In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal prosecution. But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.
First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense." Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property. Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses. All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).
Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings. I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.
Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case." And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.
Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations. But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.
Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many? most? all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table. Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.
Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims. Consequently, I fear that many (most? all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA. And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.
Some related recent posts:
- Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
- Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
Thursday, April 25, 2013
"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:
This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.
This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.
Friday, April 19, 2013
Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar TsarnaevThis CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody." Here are the basic details as of late Friday night:
The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.
Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. The younger Tsarnaev was in need of undisclosed medical care, the officials said.
After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...
Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston. Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....
The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....
A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012. Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity. He came "a few years later" and was lawfully in the United States as a green-card holder.
In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now. I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.
Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev. Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case." But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev. Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.
- Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
- Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
April 19, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (83) | TrackBack
Saturday, April 13, 2013
Florida (finally!!) carries out sentence for child killer who murdered during Carter AdministrationAs reported in this AP article, "Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces." Here is more of the story:
Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980. Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke. He was 59.
The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal. The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began. There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them.
Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher. He said she was a Girl Scout who would take in stray pets and donated money she earned to charity. She was a cheerleader who loved to dance and sing.
Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County. He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school. He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base.
He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed."... Elisa's parents, David and Wendy Nelson, watched in silence. Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.
Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.
In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid." They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote.
While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals. His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death.
Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days -- over three times her entire life -- making a mockery of our legal system," he said.
Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann....
While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.
Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."
Though I still remain a troubled agnostic on so many aspects of the modern death penalty, here I share the view of the murder victim's brother that this case ended up "making a mockery of our legal system." If factual guilt was in doubt or if this was a complicated crime implicating competing culpability issues concerning the proper sentence, I suppose I could understand why it might take a decade or more to sort out and then carry out this killer's punishment. But it seems guilt was never in doubt and that the details of the crime and the killer's basic culpability were relatively clear from the outset.
In other words, it appears that the chief reason why final resolution of this case took over 32 years was because the legal system was eager to have a sentencing debate churn over and over and over again. I have long believed that there ought to be a basic rule that provides that if a death sentence cannot be reviewed and upheld through all levels of appeal within 15 years, then it ought just become an LWOP sentence in order to save everyone the time and aggravation of the continued uncertainty and legal fighting over the difference a quicker (execution) or slower (LWOP) death sentence. Indeed, I think it is interesting to speculate whether the family of the murder victims in this case would have been able to better more on with their lives if in, say, 1995 it was simply decided that Larry Eugene Mann would just serve LWOP. (It is also interesting to speculate whether Larry Eugene Mann might have died before April 2013 if he had gotten an LWOP sentence from the outset instead of a death sentence which surely led to him getting a lot more attention from lawyers and courts throughout the last three decades.)
April 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (22) | TrackBack
Thursday, April 04, 2013
Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal
This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing. The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned." The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:
Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.
A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:
"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."
A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.
Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.
For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.
Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.
UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.
Wednesday, April 03, 2013
Some notable headlines in wake of state prosecutors' decision to seek death penalty for James HolmesI was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:
From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"
From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"
From CNN here, "Why death penalty for Holmes wouldn't bring justice"
From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"
Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"
I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising. But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.
Recent and older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- "James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"
Wednesday, February 27, 2013
Sixth Circuit weighs in with instructions on restitution sentencing in child porn casesA helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here). Here is how the majority opinion gets started:
Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:
In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received. Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases. Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers. Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.
I join all but part II.B of the Court’s thought ful opinion. I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....
In determining the amount of a restitution award under § 2259, the courts can only do their best. It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.
As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.
February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack
Monday, January 28, 2013
"Rethinking Restitution in Cases of Child Pornography Possession"The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:
Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.
In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.
To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.
January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack
Sunday, January 27, 2013
Fascinating NY Times magazine cover story on child porn victims and restitutionToday's New York Times magazine has this remarkable cover story headlined "The Price of a Stolen Childhood," which provides a fascinating profile of the two young women now at the center of legal disputes in federal courts nationwide over restitution sentences imposed upon defendants who download child pornography. The lengthy article has too many interesting facets to effectively summarize, but here is one snippet telling early parts of the legal aspects of the story:
Six months after [the first] sentencing [which included a restitution award in October 2008], [Amy's lawyer James] Marsh went after another child-pornography defendant, Arthur Staples, a 65-year-old sheriff’s deputy in Virginia, who had chatted online with an undercover detective and expressed an interest in young children. Staples sent one image of a young girl (not Amy), and he was caught with more than 600 pictures on his computer, including hers. Staples agreed not to appeal any sentence or restitution judgment. The judge sentenced him to 17½ years, and made the unusual move of ordering him to pay all of Amy’s claim. To Marsh’s surprise, Staples turned out to have $2 million in assets. He has since paid $1.2 million to Amy. (Marsh says the government let Staples’s wife keep part of the estate.) While Amy has been turned down for restitution by some courts, which have stated that there was not enough proof that any one man who viewed her pictures was responsible for the harm she has suffered, she has won more than 150 cases, totaling $1.6 million. Most of the amounts aren’t large: $1,000 or even $100, paid out in checks as small as $7.33.
Nicole has also been pursuing restitution. Her lawyer, Carol Hepburn, did her own research and got in touch with Marsh when she learned about the claims he was bringing for Amy. The two lawyers now collaborate on ideas and strategy, though they represent their clients separately. Since receiving her first check for $10,000, Nicole has collected more than $550,000, mostly in small amounts from 204 different men. So far only a few other child-pornography victims have gone to court for restitution. Many may not know there is a legal remedy; others don’t know their images have circulated....
Study after study links child sexual abuse to psychological trauma, addiction and violent relationships in adulthood. There is almost no research, however, that deals with the specifics of Amy and Nicole’s experiences: What additional harm comes from knowing that pictures of your childhood exploitation are circulating widely?
The Supreme Court actually addressed this question in its 1982 decision upholding child-pornography bans. “‘Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution,’” Justice Byron White wrote, quoting from a book about abused children. “‘Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.’”
David Finkelhor, a sociologist who directs the Crimes Against Children Research Center at the University of New Hampshire, sees the moral weight of the Supreme Court’s proclamation, but not the empirical proof. “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself,” he told me. “How do you separate it out?”
Courts have disagreed on this question. In at least a dozen cases, defendants have appealed restitution decisions and mostly won. In five of those cases, federal appeals courts have expressed skepticism that Amy and Nicole should receive more than nominal restitution. Two other appeals courts have allowed the young women to recover from individual defendants as members of the group of viewers but, so far, only for amounts of $10,000 or less. (Amy collected a far greater sum from Arthur Staples because he waived his right to appeal.)
Saturday, January 05, 2013
"Can Forgiveness Play a Role in Criminal Justice?"The title of this post is the headline of this fascinating article appearing in Sunday's New York Times Magazine. The piece is about a sad Florida case in which a young man shot and killed his girlfriend and the role a restorative justice process used thereafter shaped the defendant's prosecution and sentencing. There are lots of interesting passages in the full piece, and but this passage early in the piece caught my attention because of what it reveals about prosecutorial discretion and the distinct interests (and power) of some victims once they know the prosecutor's legal options:
“Unfortunately I have a lot of experience talking to the parents of dead people,” says Jack Campbell, the Leon County assistant state attorney who handles many of North Florida’s high-profile murder cases. Sheriff’s deputies who were investigating the case told Campbell that the Grosmaires’ feelings toward the accused were unusual, but Campbell was not prepared for how their first meeting, two months after Ann’s death, would change the course of Conor’s prosecution.
Campbell had charged Conor with first-degree murder, which, as most people in Florida understand it, carries a mandatory life sentence or, potentially, the death penalty. He told the Grosmaires that he wouldn’t seek capital punishment, because, as he told me later, “I didn’t have aggravating circumstances like prior conviction, the victim being a child or the crime being particularly heinous and the like.”
As he always does with victims’ families, he explained to the Grosmaires the details of the criminal-justice process, including the little-advertised fact that the state attorney has broad discretion to depart from the state’s mandatory sentences. As the representative of the state and the person tasked with finding justice for Ann, he could reduce charges and seek alternative sentences. Technically, he told the Grosmaires, “if I wanted to do five years for manslaughter, I can do that.”
Kate [the mother of the murder victim] sat up straight and looked at Campbell. “What?” she asked. Campbell, believing she had misunderstood and thought he was suggesting that Conor serve a prison term of just five years, tried to reassure her. “No, no,” he said. “I would never do that.” It was just an example of how much latitude Florida prosecutors have in a murder case.
What Campbell didn’t realize was that the Grosmaires didn’t want Conor to spend his life in prison. The exchange in Campbell’s office turned their understanding of Conor’s situation upside down and gave them an unexpected challenge to grapple with. “It was easy to think, Poor Conor, I wouldn’t want him to spend his life in prison, but he’s going to have to,” Kate says. “Now Jack Campbell’s telling me he doesn’t have to. So what are you going to do?”
“He’s so sorry he said that,” Kate says now, of Campbell. “I mean, it opened the door for us.”
I urge readers, before clicking through to read the full New York Times piece, to consider what might have happened once a local prosecutor "opened the door" to a murder victim's family simply by telling them about the legal discretion he possessed to seek a more nuanced form of sentencing justice. I also welcome readers to opine on whether this story should be considered a vindication or violation of victims' rights given that the local prosecutor ultimately engineered a plea deal with a locked-in prison term that differed significantly from the sentence urged by the victim's family during the restorative justice "pre-plea" conference process.
January 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, December 04, 2012
"The Victims' Rights Amendment: A Sympathetic, Clause-by-Clause Analysis"The title of this post is the title of this new paper by Paul Cassell available via SSRN. Here is the abstract:
My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice. In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments. The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.
Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment. Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions. Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.
Wednesday, November 14, 2012
Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issuesThe Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images. Here is the final paragraph from the lengthy unanimous panel opinion:
To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.
Thursday, November 08, 2012
Jared Loughner sentenced to seven consecutive life sentences plus 140 yearsLargely because (and seemingly only because) federal prosecutors were willing to take the threat of a death penalty off the table, a very high-profile mass shooting in Arizona reach a sentencing result today less than two years after the crime. This AP story, headlined "Life sentence in Ariz attack that wounded Giffords," reports on some of the basics:
Former Congresswoman Gabrielle Giffords, partially blind, her right arm paralyzed and limp, came face to face Thursday with the man who tried to kill her last year, standing beside her husband as he spoke of her struggles to recover from being shot in the head.
"Her life has been forever changed. Plans she had for our family and her career have been immeasurably altered," said astronaut Mark Kelly, both he and his wife staring at the shooter inside a packed courtroom. "Every day is a continuous struggle to do those things she once was so good at."
Jared Lee Loughner, 24, was then ordered to serve seven consecutive life sentences, plus 140 years in federal prison for the January 2011 shooting rampage that killed six people and wounded 13 others, including Giffords, outside a grocery store in Tucson, Ariz.
Loughner pleaded guilty under an agreement that guarantees he will spend the rest of his life in prison without the possibility of parole. He avoids a federal death sentence, although state prosecutors could still decide to try him.
One by one, survivors of the attack at a Giffords political event approached the courtroom podium to address Loughner, each turning toward him where he sat stoic and emotionless at a table with his attorneys. "You took away my life, my love and my reason for living," said Mavanell Stoddard, who was shot three times and cradled her dying husband in her arms as he lay bleeding on the sidewalk after shielding her from the spray of bullets.
Susan Hileman, who was shot, spoke to him, at times visibly shaking. "We've been told about your demons, about the illness that skewed your thinking," she said. "Your parents, your schools, your community, they all failed you. It's all true," Hileman said. "It's not enough."...
Some victims, including Giffords, welcomed the plea deal as a way to move on. It spared them and their families from having to go through a potentially lengthy and traumatic trial and locks up the defendant for life.
Giffords didn't speak, but stood by Kelly and kissed her husband when he was done. He grabbed her hand and they walked away, her limping. Earlier, Loughner told Burns that he would not speak at the hearing.
Both sides reached the deal after a judge declared that Loughner was able to understand the charges against him. After the shooting, he was diagnosed with schizophrenia and underwent forcible psychotropic drug treatments.
Christina Pietz, the court-appointed psychologist who treated Loughner, had warned that although Loughner was competent to plead guilty, he remained severely mentally ill and his condition could deteriorate under the stress of a trial....
It's unknown whether Pima County prosecutors, who have discretion on whether to seek the death penalty against Loughner, will file state charges against him. Stephanie Coronado, a spokeswoman for Pima County Attorney Barbara LaWall, said Wednesday that no decision had been made.
It's also unclear where Loughner will be sent to serve his federal sentence. He could return to a prison medical facility like the one in Springfield, Mo., where he's been treated for more than a year. Or he could end up in a prison such as the federal lockup in Florence, Colo., that houses some of the country's most notorious criminals, including Oklahoma City bombing conspirator Terry Nichols and "Unabomber" Ted Kaczynski.
I am very interested to hear (especially from vocal death penalty advocate and opponents) whether folks think justice has now been served in this high-profile case. I am likewise interested to hear whether folks think Arizona prosecutors should now follow-up with state charges against Loughner.
November 8, 2012 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack
Tuesday, October 30, 2012
"A Theory of Criminal Victimization"The title of this post is the title of this intriguing new paper by Joshua Kleinfeld now available via SSRN. Here is the abstract:
Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable. We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same). Yet this pattern in blame and punishment has been overlooked. Criminal scholarship and moral philosophy have offered no theory by which to explain it. And, lacking a theory, the pattern itself has been missed or misunderstood empirically.
This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.
A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.
Monday, October 01, 2012
En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases
The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:
The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.
This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....
For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion
The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.