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.
Wednesday, August 29, 2012
"Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"The title of this post is the headline of this lengthy and effective new article in the latest issue of the ABA Journal. Here is a small excerpt from a piece that merits a full read for any and everyone concerned with issues surrounding child porn sentencing or restitution punishment:
Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...
The restitution portion of VAWA requires full compensation for victims’ losses, regardless of the defendant’s ability to pay. The D.C. Circuit noted this in April 2011 in U.S. v. Monzel, when it remanded a partial restitution order so the trial court could calculate “the full amount of the victim’s losses.”
However, the full-restitution requirement creates another problem with using VAWA in cases like Amy’s: how to split the restitution payment among all of the defendants who may be charged with possession of the same images. The act provides for joint and several liability among defendants in the same case, but what about defendants in multiple cases, in numbers nobody can predict? How should responsibility be apportioned between each of them, plus the original maker of the child pornography? And how can the justice system track what the victims actually receive?
Legal experts say there’s no precedent for these questions under VAWA or anywhere else in criminal law or in tort law. Several appeals courts have dedicated parts of their opinions to the problem, and federal district courts have struggled, with some developing a flat-rate scheme on their own. These include the Eastern District of California, which in three cases awarded $3,000 per victim, extrapolating from a provision in 18 USC § 2255 that minor victims of sexual exploitation may be deemed to have suffered civil damages no less than $150,000. In another case, a court in the Western District of Washington awarded $1,000 per image in U.S. v. Kennedy (later reduced to zero by the 9th Circuit at San Francisco).
Marsh says it’s his policy to file for full restitution—the full amount of Amy’s lost income, past and future psychiatric treatment, loss of enjoyment of life and attorney fees—in nearly every case, regardless of what other orders his client has received and regardless of the defendant’s means. He says Amy doesn’t care where the money comes from as long as she is made completely whole. He and Carol Hepburn of Seattle, Vicky’s attorney, argue that the system should not put the burden of working out these details on victims. Complicating matters further, Hepburn says, is the problem of collecting. “Just because an order is entered doesn’t mean one is going to get payment,” she points out. “In fact, I can remember early on a prosecutor telling me: ‘I got you a $10,000 order, but good luck getting anything because this guy’s going to get deported after he gets out of jail.’ ”
Even without immigration problems, defendants may have no money left after their defense, and no way of earning it while serving the long prison sentences typical in child pornography cases. Hepburn and Marsh say they receive some large checks as well as a few regular payments from prison wages. In some circumstances, particularly when the defendant is indigent, they may also work out arrangements with prosecutors or defense counsel.
August 29, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Friday, August 17, 2012
More on victims' perspectives and advocacy after SCOTUS Miller ruling
Today's Los Angeles Times has this interesting new piece headlined "Ruling on juvenile killers reopens wounds for victims' families: A Supreme Court decision that juvenile murderers with life sentences should have a chance at parole stirs old memories for relatives of victims; Some are preparing to fight back." Here are excerpts:
Jose Vasquez remembers the night police officers came to his house and said his sister Tayde was dead. He remembers too the mornings escorting his mother to the trial in Long Beach, and their relief when the young killer was given life in prison with no parole.
Now, after 20 years, the Supreme Court has ruled that juvenile murderers with mandatory life sentences should have a chance at parole, a decision that has led many states to debate comparable legislation. On Thursday, the California Assembly passed a measure that someday could set free youthful offenders like Elizabeth Lozano, who was 16 when 13-year-old Tayde Vasquez was shot in the head.
For Tayde's family, that is like the knock at the door again. Preparing to fight back, they returned to the courthouse this summer, collecting old records and transcripts, and seeking out prosecutors. They also have written prison officials asking to be told whether Lozano files a legal appeal, wins a parole hearing, escapes or dies. They are determined to keep her inside the California state prison in Chowchilla. "It's like it's all coming back again," Vasquez said. "It's like a ghost hunting us down."...
In the United States, about 2,000 inmates are serving life with no parole for juvenile murder. In California, there are 300 such offenders. To get parole under the bill, likely to pass next week in the state Senate, they would first have to serve 25 years and then convince authorities that they regretted their past actions, have stayed out of trouble in prison and could be productive in society.
That is a very high bar. Yet Lozano, now 37, has by all appearances turned her life around. She has excelled in academics, led prison fellowships and won accolades from the prison administration.
For the Vasquez family, that is not good enough. Nor does it persuade victims' advocates like Maggie Elvey, whose husband was killed in 1993 by two youths in San Diego County. She said opponents would consider a lawsuit to stop enforcement if the bill became law. "You do it, that's it," she said of a life sentence. "That's what you get."
Jennifer Bishop-Jenkins, whose pregnant sister and her husband were killed in 1990 by a 17-year-old in the Chicago suburb of Winnetka, worried that the court ruling would be emotionally devastating for her if she had to once more fight against a killer's release. After so many years, she said, case files might be missing, memories may have faded and witnesses long ago may have died. "Everything we would need to arm ourselves might be lost," she said. "Our ability to fight a parole hearing would be severely compromised."
Some states have found ways to get around the court's ruling. In Iowa, Republican Gov. Terry Branstad last month commuted sentences of life with no parole for all 38 juvenile murderers in his state, but he then made them eligible for parole only after they served 60 years. A killer at age 15 would be 75 before he saw a parole board.
Some related recent posts on Miller and its impact on victims:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Basic mandatory juve LWOP head-count in light of Miller
- Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers
- Guest post on Miller from another thoughtful victim of a teenage killer
- Iowa Gov uses clemency power to devise (astute? sinister?) response to Miller for juve LWOPers
- Taking stock on what Miller is likely to portend
- "What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"
Thursday, August 16, 2012
"What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"
The question in the title of this post comes from this local piece from Pennsylvania. Along with this companion piece, which is headlined "Pennsylvania is battleground for implementing Supreme Court ruling on young lifers," the report does a nice job spotlighting the challenges facing the Keystone State in the wake of the Supreme Court's work in Miller. Here is an excerpt from the piece which sets out some additional questions concerning which I am interested in comments:
Pennsylvania has more prisoners who were sentenced to life without parole as minors than any other state — about 500 — and the least amount of time to deal with the flood of resentencing petitions. Under existing state law, those prisoners have 60 days to re-open their cases, while some states have as long as a year.
If the decision is to work retroactively, which is not at all clear yet, it could mean a lot of potential resentencing hearings and a lot of unhappiness dredged up for the families of murder victims. What is the fairest way of dealing with this?
Iowa's Gov. Terry Branstad sidestepped the issue in July by commuting the life sentences of 38 juvenile offenders and making them eligible for parole after 60 years. The action seems to be an attempt to protect victims' families, who would be forced to sit through parole hearings if lifers are granted new sentences. He eliminated that possibility and, in going against the spirit of the Supreme Court decision, sparked criticism and legal challenges.
Do you think individual prisoners should be entitled to a resentencing hearing, or is this an unfair burden on Pennsylvania's legal system?
Speaking of unfair — should victims' families be forced to reopen old wounds with more legal proceedings?
Would you support a blanket solution like Branstad's (which, as far as we know, is not on the table in Pa.), or do you think his disregard for individual cases was unfair?
Tuesday, August 07, 2012
"Child Pornography and the Restitution Revolution"
The title of this post is the title of this new paper by Cortney Lollar now available via SSRN. Here is the abstract:
Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution.
Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.
Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.
Friday, August 03, 2012
Victim's family, 32 years later, now seeks closure via life (with parole) rather than deah sentence
This fascinating local story out of Texas, headlined "Long-serving Death Row inmate makes deal, could be paroled in 12 years," provides a distinctive perspective on what closure can end up meaning for some family members of murder victims. Here are the remarkable details:
Delma Banks Jr., who has been on Death Row for three decades, accepted a life sentence Wednesday and will be eligible for parole in 2024 under an agreement with Bowie County prosecutors. Banks, 53, was convicted of fatally shooting 16-year-old Richard Whitehead in 1980 in a park near Texarkana and stealing his car.
In 2004, the U.S. Supreme Court overturned Banks' death sentence, finding that Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. A new punishment trial was scheduled for October in Collin County, where it was moved on a change of venue.
Bowie County District Attorney Jerry Rochelle told the Texarkana Gazette that Whitehead's family wanted the case to end. "They were ready for some closure," Rochelle told the newspaper. "After 32 years of dealing with the offense, the death of their son, the original trial, the appeals and the prospect of a new trial, they were ready for it to end."...
There were no witnesses to the killing and no physical evidence linking Banks to it. The prosecution's case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Cook also had convictions for robbery by assault and forgery. Banks had no criminal history, and people who were with him and Whitehead on the last night that Whitehead was alive testified there was no ill will between the two.
Banks is black; Whitehead was white. An all-white Bowie County jury convicted Banks and returned a death sentence. In 1999, a federal judge forced Bowie County to open its case records. Banks' lawyers found a transcript showing that Cook's testimony had been extensively rehearsed and coached. They also learned that police paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.
Farr said in an affidavit that he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found.
In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks' lawyers were at fault for not uncovering the information sooner. In 2003, Banks got within 10 minutes of his scheduled execution before the Supreme Court stopped it....
In previous motions, Banks also sought to challenge the jury's decision that he was guilty, based on the court's findings that prosecutors had erred in the trial. But in the agreement signed Wednesday, Banks agreed to no further challenges of his conviction. He will be 65 when he is eligible for parole, and he will have served 44 years in prison.
George Kendall, an attorney for Banks, issued a brief response to the agreement: "After 32 years, the State has decided to no longer seek the death penalty in this case. We hope the resolution of this case will bring closure to all concerned."
Tuesday, July 10, 2012
"Are Our Sex Crime Laws So Radical They Deter Reporting?"
The provocative question in the title of this post comes from Professor Dan Filler via this post at The Faculty Lounge, which in turn links to this extended op-ed also by Dan Filler appearing in today's Philadelphia Inquirer. The op-ed carries the headline "Penn State scandal shows sex-abuse laws can backfire," and here are excerpts:
[T]here is another lesson to be learned from this horrible [Sandusky] story, and it's time we acknowledged it. Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime....
Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.
Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.
There is little evidence that all these measures reduce the incidence of sex crimes one whit. They have, however, dramatically raised the stakes of reporting and charging such crimes.
There's no doubt that Penn State administrators were trying to protect the university and its football program. But they were also trying to protect Sandusky and themselves from the tsunami that would follow. I take [former Former Penn State president Graham] Spanier at his alleged word that he feared an inhumane result. He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.
And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives. There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.
There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective.
Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.
The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.
July 10, 2012 in Celebrity sentencings, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack
Sunday, July 01, 2012
Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers
A few weeks ago at the US Sentencing Commission's annual conference, I had the great pleasure of meeting Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL). With the juve LWOP cases then still pending before SCOTUS, Jennifer and I had a fascination conversation about how victims of juve lifers would be impacted by a SCOTUS ruling declaring some juve LWOP sentences unconstitutional. Then, after the ruling, I asked Jennifer if she would write a guest-post for this blog, and here is what she kindly sent me for posting, reprinted in full:
Victims families' primary concern in the wake of the Miller v Alabama, Jackson v Hobbs ruling this week from the Supreme Court is for those like us who do not yet know about the case. We have been calling on all those involved to devote themselves now to outreach to affected victims families, hopefully delivering to them all the information and support they need to cope with the new legal realities just created by the Court. We already know that well-funded offender advocates are busily working already to assist many teen killers to file their new legal challenges. We have long been troubled by the significant staff and funding available to help those who murdered our family members, while there has been no assistance whatsoever to the victims families left behind.
But we also are confident that very little in these offenders' prison sentences will actually change, and here's why:
While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences. This matter will obviously be heavily litigated (see legal analysis at our website here). Cases still under direct appeal will be re-sentenced, but state legislatures will likely weigh in first, and victims families, along with the general public, can help shape how state legislatures decide to comply with the ruling.
State legislatures can simply make the LWOP sentences optional -- then judges can still give them to the offenders. Many will do just that. After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer -- a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative.
While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.
Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. While we know a few will receive some relief, we are predicting that very few teen killers serving life sentences will likely ever be released early from prison.
The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request. There was not a SINGLE vote on the Supreme Court to find all life sentences for teen killers unconstitutional. The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers is completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.
While NOVJL only exists to support and inform victims, and we take no specific stand on what sentencing should be (the purview of legislatures and courts) we did have some concerns with the majority opinion as written.
Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.” We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims. The only people in this discussion with death sentences are our murdered loved ones.
To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence. It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” -- someday. Many victims families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.
Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning. They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way. They can choose each day to make good things happen, even from their cells. Many inmates that we admire do just that. They can even express remorse for their crimes and try to be helpful to victims everywhere. They can live. Even from behind bars. They LIVE. The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.
Also, there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion. Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”. But the majority opinion gave no thought, apparently, to the impact of this decision on victims families.
Finally, some of us are actually feeling sorry for the families of the offenders affected by this ruling: right now they are likely very happy -- even celebrating -- feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life. Some are likely even planning the offenders’ homecoming. We know that this is going to end in disappointment for almost all of them. Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow. They committed horrific murders. Most will not likely ever qualify for release anytime soon, even if they are re-sentenced in a way that allows release possibilities.
Juvenile life without parole remains constitutional, rare, and available as a sentence when the facts of the offense and the offender demonstrate that it is appropriate. Our focus remains where it should be: assisting people whose lives have been destroyed by the violent choices of others, and preventing future such tragedies.
Monday, June 25, 2012
"Utah mom upset over judge's hair-cut punishment"
The title of this post is the headline of this intriguing AP article about a (too?) creative state sentencing in a juvenile court. Here are the details:
A Utah mother says she felt intimidated in court when a judge told her that he would reduce her 13-year-old daughter's sentence if she chopped off the girl's ponytail in court — an offer the mother says she now wishes she hadn't taken.
Valerie Bruno, of Price, said she has filed a formal complaint against 7th District Juvenile Judge Scott Johansen with the Utah Judicial Conduct Commission. The teenager and an 11-year-old friend were referred to juvenile court for cutting off the hair of a 3-year-old girl with scissors in March and for harassing another girl in Colorado by telephone.
When the 13-year-old faced Johansen for a hearing in May, he ordered she serve 30 days in detention and to perform 276 hours of community service, but he also offered to take 150 hours of community service off the sentence if her mother cut her ponytail in his courtroom.
Bruno is now expressing regret for not consulting an attorney before taking her daughter into the courtroom. "I guess I should have went into the courtroom knowing my rights, because I felt very intimidated," she told the Deseret News. "An eye for an eye, that's not how you teach kids right from wrong."
Mindy Moss, mother of the 3-year-old whose hair was cut off, said she approved of the sentence and even spoke up during the hearing when she felt Bruno had not cut off enough of her daughter's hair. Johansen then directed Bruno to cut the ponytail all the way "to the rubber band."
Moss told The Salt Lake Tribune that she originally called police about the haircut because she worried the girls' behavior could become more serious. "I didn't want them to think they got away with it … It was malicious," Moss said.
Under state law, judges are given discretion in coming up with sanctions for youth that will change their behavior in a positive way. Johansen ordered the friend of Bruno's daughter to have her hair cut as short as his. She was allowed to go to a salon to have it done, then return to the courtroom to ensure that the new hairstyle met with the judge's approval.
I know of plenty of lawyers who get upset when a judge orders a hair-cut on their fee requests. I also know that prisoners often complain if and when prison officials require them to get haircuts. But this is the first time I have seen a concern about a hair-cut as part of a sentencing ruling.
June 25, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Thursday, June 14, 2012
"Sentencing Councils and Victims"
The title of this post is the title of this new article posted on SSRN by Ian Edwards. Here is the abstract:
This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines.
While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.
Monday, June 11, 2012
Heated "victims" and "low" guideline range set up interesting sentencing for mobster's moll
This new AP article, which is headlined "Lawyer for Mass. mobster's lover asks for leniency," reports on the final pre-game development before a high-profile federal sentencing scheduled for tomorrow in a high-profile criminal case out of Boston. Here are the details:
The lawyer for the longtime girlfriend of Boston mobster James "Whitey" Bulger asked a judge on Monday to sentence her to 27 months in prison for helping the fugitive stay on the run for 16 years. Prosecutors have asked for a decade in prison for Catherine Greig, who faces sentencing Tuesday.
The 61-year-old pleaded guilty in March to charges of conspiracy to harbor a fugitive, identity fraud and conspiracy to commit identity fraud. The 82-year-old Bulger is awaiting trial on charges he participated in 19 murders. Authorities captured the couple in Santa Monica, Calif., last June. Prosecutors say the pair posed as married retirees from Chicago and had a stash of more than $800,000 in cash and 30 weapons in their apartment upon capture.
In a sentencing memo, Greig's lawyer Kevin Reddington said his client was in love with Bulger and there was no evidence she knew about the money or guns. He said Bulger was a "Robin Hood like" person and a "champion of the oppressed" when she fled with him, years before an indictment revealed "horrific allegations of murder."
The attorney called the government's sentencing recommendation a "draconian sentence" to crush someone prosecutors are trying to portray as a "sinister mastermind." Reddington also suggested that the government was trying to "rectify the bungling" of their investigation and redeem themselves from bad publicity. He said the government struck a plea deal with Greig, then faced criticism in the media from family members of those whom prosecutors say Bulger killed.
Greig faces a maximum of 15 years in prison, but prosecutors previously said she could serve as little as 32 months under sentencing guidelines. Reddington's memo says probation officials recommended a prison sentence of 27 to 33 months.
The defense attorney also singled out Steven Davis, the brother of a 26-year-old woman who prosecutor say Bulger killed in 1981, as spearheading criticism he says led to a post-plea effort by the government to give his client a long prison sentence. Greig's attorney also filed an objection Monday to a request from the U.S. attorney's office to allow Davis and other family of Bulger's victims to speak at her sentencing. He says they're not victims of Greig's crimes.
Prosecutors have called Greig's conduct the most extreme case of harboring a criminal they've seen. They said she protected Bulger from authorities, for years denying the family of his victims the chance to see him brought to justice. Davis said Monday that a sentence of 27 months "would be the most ridiculous thing to ever come out of federal court."...
Patricia Donahue, the widow of a man who died in a hail of bullets after prosecutors say Bulger opened fire on someone else in 1982, called the defense's request for 27 months in prison for Greig "a joke" that would encourage other people to harbor criminals. Donahue, of Boston, also said she was hoping to speak at Greig's sentencing. "How are we not victims of the crime if she spent 16 years with the man responsible for my husband's death?" Donahue said.
The specifics of this AP article prompt the quote marks in the title of this post, which in turn frame the interesting legal issues now presented by Catherine Greig's sentencing. I can see a good argument for calling the victims of Bulgler's crimes also victims of Greig's crimes of harboring and fraud (and I generally take an expansive view of who has rights under the federal Crime Victims Rights Act). But, especially if one credits Greig's claims that she did not know all about Bulger's homicidal past (and that folks are really most angry about how the feds have handled the Bulger case), I can also see a reasonable argument for limiting how victims of Bulgler's murders get to express themselves at Greig's sentencing.
Even more interesting for hard-core sentencing fans seems to be the distinct dynamic in this case of a defense attorney urging a sentencing judge to follow the guidelines while federal prosecutors seek some form of a departure from the guidelines. As all federal sentencing practitioners know, in nearly all post-Booker cases, the prosecutors are typically defending the guidelines and seeking within-guideline sentences while defense attorneys attack the guidelines as too harsh and seek non-guideline outcomes. But, in this distinctive case, it appears that the defense attorney will be praising the guidelines, while prosecutors (and perhaps also victims) argue that a within-guideline sentence would be unjust and inappropriate.
Previous related post:
- Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights
June 11, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, June 05, 2012
Notable appeal for clemency from victims' family rejected by Mississippi Gov
As reported in this AP article, which is headlined "Mississippi Gov. Phil Bryant won't stop execution for 1990 slayings," a plea for mercy coming from parents of children killed by a condemned murderer did not convince Mississippi's Governor to grant clemency on the eve of the execution. Here are the interesting details:
A Mississippi man who fatally stabbed four young nieces and nephews in a 1990 rampage faced scheduled execution Tuesday evening, despite the pleas of two sisters to spare the brother who murdered their children.
Henry "Curtis" Jackson Jr. was scheduled to die by injection at 7 p.m. EDT Tuesday. Jackson spent the day receiving relatives, including one of the sisters whose two children were kililed and who survived after being stabbed five times. The slain children ranged from 2 to 5 years old and were killed as Jackson allegedly was trying to steal his mother's safe while she was at church.
Late Tuesday afternoon, Gov. Phil Bryant declined to stop the execution. The mother of the slain children had asked Bryant to spare their brother. "I have reviewed the facts of this case and the applicable law," Bryant said in a news release. "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency."
But he said he was moved by the plea of the relatives. "I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law," Bryant said. "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children. However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed."
Corrections Commissioner Chris Epps said at a briefing Tuesday at the Mississippi State Penitentiary that Jackson acknowledged the crime and was talkative and writing letters after visiting with family. "This is somewhat unusual in that we have family members who are also victims," Epps said.
Among Jackson's visitors at the penitentiary in Parchman were his children, his mother and a sister, Regina Jackson was stabbed five times and survived the attack that killed her two daughters and two nephews.
Regina Jackson met with the governor Monday to plead for her brother's life. She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing."
"As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote....
Regina Jackson told The Associated Press in a telephone interview as the execution date loomed that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."
Another sister and her husband, Glenda and Andrew Kuyoro, also asked Bryant to spare Curtis Jackson in a letter dated May 15. The couple said they tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies.
"We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Epps said Regina Jackson and the Kuyoros planned to witness the execution.
Jackson has said he doesn't remember stabbing the children, but testimony from his trial describ ed a horrific scene. He cut the phone line before going in the house, according to the court record. Once inside, he demanded money and attacked his sister. One of the children tried to help, but he stabbed her, too. Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.
UPDATE: This local article reports on the completed execution of Jackson (and also notes that Mississippi's next execution is scheduled for next week).
Monday, May 28, 2012
Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign
At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example). This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:
The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.
There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.
"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved. Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it. If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."
Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing. Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.
Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received. Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.
Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."
The Ravi case is, of course, unique in many ways. Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.
Recent related posts on Ravi case:
- "Ravi found guilty on 24 of 35 charges in webcam case"
- "Ravi media tour carries risks at sentencing, experts say"
- Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
- New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes
- Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?
- Dharun Ravi sentenced to only 30 days in jail in NJ webcam case
Monday, May 14, 2012
Intriguing victim rights' issues raised by 9/11 husband's anti-death penalty position
The New York Post has this interesting new exclusive story headlined "Husband of 9/11 victim goes to Gitmo to spare plotters from death sentence." Here are excerpts:
The husband of a woman killed on 9/11 went to Guantanamo Bay on a shocking secret mission — to try to save the lives of the al-Qaeda monsters who planned the murder.
Blake Allison — one of 10 relatives of victims to win a lottery for tickets to the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices — had told people he was making the trip because "I wanted to see the faces of the people accused of murdering my wife." But while there, the 62-year-old wine-company executive held a clandestine meeting with the terrorists’ lawyers, in which he offered to testify against putting their clients to death.
A vocal critic of capital punishment, Allison wants to convince the US government to spare the lives of KSM and his minions even if a military commission convicts them of a slew of death-penalty charges. “The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post. “We can’t kill our way to a peaceful tomorrow.”
Allison’s 48-year-old wife, Anna, was a software consultant on her way to visit a client in Los Angeles when her plane, American Airlines Flight 11, was smashed into World Trade Center Tower 1 on Sept. 11, 2001.
In a lengthy conversation from his home in New Hampshire, Allison explained his controversial view — one he admits is not shared by his late wife’s relatives or by the other family members of victims he met at Guantanamo. “My opposition to the death penalty does not say I don’t want the people who killed my wife and [the other 911 victims] brought to account for their crimes,” he said. “But for me, opposition to the death penalty is not situational. Just because I was hurt very badly and personally does not, in my mind, give me the go-ahead to take a life.”
He said that “9/11 was a particularly egregious and appalling crime,” but added, “I just think it’s wrong to take a life.”
Allison, who has remarried, is under no illusion that the terrorists have reformed — and would not gladly kill more Americans. After staring at the fiendish faces of KSM, Ramzi bin al Shibh, Walid bin Attash, Mustafa al-Hawsawi and KSM nephew Ali Abdul Aziz Ali, Allison said he is certain they have “no apparent remorse and would do it again.”
Still, he said, “I’ve been opposed to the death penalty for decades, before my wife was murdered on 9/11. I’m still opposed to it.”
He said he spoke to other family members at Guantanamo and came to realize he was alone in his view. “I know they’re sincere in their beliefs,” he said. “They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”
The defense lawyers were pleased, but probably not terribly surprised to see him. Allison had previously testified on behalf of 9/11 conspirator Zacarias Moussaoui — the so-called 20th hijacker — who had faced the death penalty but was sentenced to a life term, which he’s serving in the Supermax prison in Colorado....
He said his opposition to execution is rooted in his Episcopalian faith. “When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’ That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”
As the title of this post highlights, I think there are some unique federal legal issues raised by Blake Allison's status as a crime victim and his vocal opposition to the death penalty when combined with the distinctive realities of the military commissions being used to try KSM and his ilk for the 9/11 mass murders. As regular readers know, after the 2004 passage of the federal Crime Victims Rights Act (basics here), Allison has an distinct and enforceable right to notice about and a "right to be reasonably heard" in any and all "public court proceeding." But what being "reasonably heard" and even what qualifies as a "public court proceeding" is an uncertain legal issue in the context of the military commission process. Among other interesting questions raised here is whether and how Allison could complain and/or appeal using the CVRA if he feels he is not having his rights as a victim respected by the feds through the military commission process.
Friday, April 20, 2012
"Murder victim’s family sues to enforce California death penalty"
The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:
The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.
Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.
The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.
In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.
“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.
Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.
The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.
The 30+ page petition in this action is available in full at this link.
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.