Wednesday, November 14, 2012

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

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

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

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

Thursday, November 08, 2012

Jared Loughner sentenced to seven consecutive life sentences plus 140 years

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 30, 2012

"A Theory of Criminal Victimization"

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

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

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

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

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

Monday, October 01, 2012

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

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

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

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

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

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

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

Wednesday, August 29, 2012

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

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

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

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

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

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

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

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

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

Friday, August 17, 2012

More on victims' perspectives and advocacy after SCOTUS Miller ruling

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

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

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

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

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

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

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

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

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

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

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

Thursday, August 16, 2012

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

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

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

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

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

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

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

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

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

Tuesday, August 07, 2012

"Child Pornography and the Restitution Revolution"

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

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

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

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

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

Friday, August 03, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, July 10, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, July 01, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 25, 2012

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 14, 2012

"Sentencing Councils and Victims"

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

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

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

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

Monday, June 11, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Previous related post:

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

Tuesday, June 05, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, May 28, 2012

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

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

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

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

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

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

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

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

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

Recent related posts on Ravi case:

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

Monday, May 14, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 20, 2012

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 18, 2012

Intriguing Second Circuit ruling on restitution awards and plain error

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

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

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

Thursday, March 01, 2012

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

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

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

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

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

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

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

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

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

Wednesday, February 08, 2012

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

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

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

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

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

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

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

Friday, January 13, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 09, 2012

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

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

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

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

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

Wednesday, December 07, 2011

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

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

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

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

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

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

Monday, November 21, 2011

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

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

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

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

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

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

Some related posts:

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

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

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

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

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

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

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

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

Friday, November 04, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, October 15, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 14, 2011

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 08, 2011

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

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

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

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

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

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

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

Some related recent federal child porn restitution posts:

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

Saturday, August 27, 2011

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

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

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

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

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

Saturday, July 30, 2011

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

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

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

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

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

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

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

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

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

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

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

Monday, July 25, 2011

Accuser tells Newsweek she wants to see DSK in jail

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

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

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

Prior posts on DSK charges:

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

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

Wednesday, July 13, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 11, 2011

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

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

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

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

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

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

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

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

Friday, June 24, 2011

Sentencing meets the First Amendment in DC Circuit material witness ruling

An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here).  Here is how the opinion starts:

Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities.  After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings.  The District Court denied the request.  Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings.  See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980).  We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings.  Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims.  United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).  We affirm the orders of the District Court

June 24, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, June 07, 2011

Some family members of Ohio mass murderer victims want plea deal, not death penalty, for "closure"

As detailed in this new AP story, a high-profile mass murder case in Ohio has today prompted a high-profile plea for a plea deal from family members of the murder victims.  The piece is headlined "Relatives of Cleveland victims seek plea deal in Sowell case," and here are excerpts:

Some relatives of 11 women allegedly killed by a man on trial are seeking a plea deal to spare the emotional ordeal of seeing the "horrors" play out in court, two attorneys representing families said today.

The attorneys said relatives of at least six victims have signed an appeal asking Cuyahoga County Prosecutor Bill Mason to strike a deal in the case against Anthony Sowell, 51.  "They are concerned about the emotional trauma that the trial is going to cause on their families," Christine LaSalvia said.

"They are really just looking for closure. And I think, just as a way of avoiding reliving what happened and the horrors of what happened, they would prefer not to go through the trial." Her law partner, Jeffrey Friedman, said prosecutors should consider the feelings of family members when deciding whether to strike a last-minute deal. "The victims' families' feelings should be taken into consideration," he said.

Mason said Friday he was determined to get the death penalty. A plea deal likely would mean sparing Sowell's life in return for a guilty plea.

Friedman said a life sentence without parole would be similar to a conviction, death sentence and Sowell dying in prison awaiting the outcome of many years of appeals. Mason's office didn't immediately respond to a request for renewed comment today....

The families' appeal for a plea deal was first reported by WEWS-TV, which said the signed petitions would be delivered to Mason's office. LaSalvia said the number of signatures and delivery schedule were "a work in progress."

Jury selection entered the second day today for Sowell, who has pleaded not guilty. The trial is expected to last several weeks. Prosecutors say Sowell lured women from his inner-city Cleveland neighborhood into his home with the promise of alcohol or drugs, then killed them. The women disappeared one by one, starting in October 2007. The last one vanished in September 2009.

June 7, 2011 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, June 05, 2011

House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run

A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:

The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....

The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.

LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.

Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...

At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.

Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.

Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.

The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.

Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."

By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.

Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...

LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.

In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.

The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."

LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."

Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."

There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.

June 5, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, May 28, 2011

Oregon Supreme Court clarifies importance of victim rights at sentencing

As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision.  Here is the start of the press report:

The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.

The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process.  The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.

“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School.  Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.

The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009.  The high court’s ruling is its first on this issue.

This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:

The principles outlined in [US Supreme Court case] DiFrancesco resolve this case.  The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy.  The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense."  Id. at 129 (internal quotation marks and citation omitted).  However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case.  The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause.  "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.

The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a).  Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause.  Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533.  The trial court erred in not granting the victim the relief that she sought.

May 28, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, May 15, 2011

Keen coverage of capital realities, including deals to avoid death, in Ohio

My own Columbus Dispatch today had these two notable pieces on the operation of the Buckeye death penalty:

Here is an excerpt from the first of these pieces:

The death penalty in Ohio is more than just a form of punishment -- it's a tool prosecutors rely on to get information, avoid lengthy and costly trials and to provide quick justice to families in pain.  In contrast, pursuing a death-penalty case can mean decades before an execution date even is set....

Brent Yager, prosecutor in Marion County, said he believes he has a duty to seek the death penalty if the crime fits the requirements.  But circumstances can change, he conceded.  Sometimes, the threat of death is indeed a bargaining chip, a means to a conviction.  Other times, more information simply comes to light. "As you get closer to trial, a lot can happen," he said.  "You learn more about the case, you learn more about the defendant and, probably most importantly, you get to know the victim's family and you learn their wishes."

Sometimes, cost is a factor for poor, rural counties.  Yager said he understands that but wishes it wasn't so.  "Cost should carry the least amount of weight when choosing whether to seek a death sentence," he said.  "And, in my mind, the wishes of the family should be given the most."

Citing the cost and racial imbalance, two Democratic state lawmakers want to abolish the death penalty in Ohio. Reps. Ted Celeste, of Grandview Heights, and Nickie Antonio, of Lakewood in the Cleveland area, have introduced the legislation.  It likely is going nowhere in the Republican-dominated House.  Still, prosecutors worry about losing the option...

Defense attorneys counter that prosecutorial leverage is no justification for the death penalty.  "If we look at the death penalty as something there to extract guilty pleas more readily, I think that's a hell of a bad reason to have the death penalty," said Marc Triplett.

May 15, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Iranian judiciary postpones planned "eye for eye" punishment

As detailed in this new Time piece, the "Iran's judiciary has postponed the blinding of a man as punishment for throwing acid in the face of a young woman in 2004, after she rejected his offer of marriage." Here is more on this proposed and now postponed form of retributive justice:

The delay came in the face of mounting outcry both inside Iran and in the West over the sentencing, which is permissible under qesas, a principle of Islamic law allowing victims analogous retribution for violent crimes.

The case has stirred passionate interest in Iran since 2004, when Majid Movahedi, a university student, accosted Ameneh Bahrami on a Tehran street and tossed a red bucket of sulfuric acid in her face.  Bahrami, an attractive young engineer, had repeatedly spurned Movahedi's proposals and reported his harassment to the police.  She was blinded and severely disfigured in the attack, and has spent the intervening years between Iran and Spain undergoing numerous unsuccessful operations to reconstruct her face and repair her sight.

Much of the public outcry in Iranian media, news websites, and blogs, surrounds the Iranian legal system, which produces such verdicts by practising an 'eye for an eye' approach to justice based on seventh century Islamic jurisprudence.  These principles effectively offer victims of violent crime two legal choices, forgiveness or qesas, analogous retribution....

Speaking on the interactive television program Saturday, Bahrami said she favored a more modern course, suing for damages.  "I want him to be punished foremost. But if there are human rights considerations, then I'll accept two million Euros and his life imprisonment," she said....

Bahrami, who was scheduled to herself administer the blinding drops to an anaesthetized Movahedi, learned of the delay outside the Judiciary Hospital in Tehran. Human rights groups and Western governments pleaded with Iranian authorities last week to call off the punishment.  Iran's government usually responds to such foreign pressure by lashing out rather than backing off, but Bahrami's case poses a unique dilemma: unlike many human rights cases which excite opinion primarily in the West, it has resonated deeply throughout Iranian society; the attention inside Iran raises the prospect of a public backlash at a time when the regime is deeply divided by political infighting. "There's no doubt public opinion inside Iran has been stirred up," says Amini.  "There's been a huge outpouring of sympathy for both of them, and this puts pressure on the government."

May 15, 2011 in Sentencing around the world, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 12, 2011

California DA files suit hoping to undo controversial clemency grant

As detailed in this local piece, headlined "D.A. seeks to overturn reduced sentence of Esteban Nuñez in fatal stabbing," a county prosecutor is trying to break new lega ground by suing over a controversial clemency grant. Here are the details:

The San Diego County district attorney has filed a civil suit aimed at overturning former Gov. Arnold Schwarzenegger’s last-minute reduction of the prison sentence of the son of former Assembly Speaker Fabian Nuñez in the slaying of a college student.

On his last day in office, the governor reduced the sentence of Esteban Nuñez from 16 years to seven years.  The decision was made without consulting with prosecutors in the case -- angering Dist. Atty. Bonnie Dumanis and the family of the victim, Luis Santos.

In the civil suit, announced Wednesday, Dumanis argues that Schwarzenegger had a legal obligation to notify prosecutors and the families of the victims.  Santos was killed in a late-night street brawl outside San Diego State.  Nuñez pleaded guilty in 2010 to voluntary manslaughter and assault with a deadly weapon.

The suit is considered the first of its kind, Dumanis said....  The lawsuit names the governor, Nuñez, the director of the state Department of Corrections and Rehabilitation and the warden of Mule Creek State Prison, where Nuñez is serving his time.

Dumanis said Marsy’s Law, meant to protect the rights of crime victims, requires a governor to notify prosecutors and family members.  The civil suit could face a difficult legal precedent: that the right of governors to grant pardons and sentence reductions has been considered unlimited and not subject to review.

The governor, Dumanis said, is given that power to help correct miscarriages of justice. “Instead, this last-minute commutation made without all the facts or input from the parties only fueled the public mistrust of government and greatly diminished justice,” Dumanis said.

Though this novel lawsuit is seeking to undo a clemency decision that helped a criminal defendant, I suspect some defendants and their attorneys might like to see a ruling here that courts have authority to review and second-guess executive clemency decisions.  After all, the vast majority of such executive decisions involve the denial of clemency; I am sure defendants and their attorneys who believe clemency was justified in certain cases would welcome any means or opportunity to challenge clemency denials in court.

May 12, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 05, 2011

"The Criminal Class Action"

The title of this post is the title of this very interesting looking new piece by Adam Zimmerman and David Jaros, which is now available via SSRN. Here is the abstract:

Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud.  In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence.

Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation.  While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims.

We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm.  However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation.  We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.

May 5, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, April 30, 2011

"Co-Victims Against the Death Penalty"

The title of this post is the headline of this new editorial in the New York Times.  Here are excerpts:

As the country has increasingly turned against capital punishment as barbaric and horrifyingly prone to legal abuses, defenders are pointing to the emotional needs of the families of murder victims — “co-victims” to those who study crime — as justification. Many family members, however, have said they want no part of that.

When New Jersey abolished the death penalty in 2007 and New Mexico did in 2009, each did so with the support of co-victims. In Connecticut, the Legislature’s joint Judiciary Committee has now approved a bill that would repeal that state’s death penalty, again with the support of victims’ families.

The family members say that rather than providing emotional closure, the long appeals process in death penalty cases is actually prolonging their suffering.  They also say it wastes money and unjustifiably elevates some murders above others in importance. In an open letter to the Connecticut Legislature, relatives of murder victims — 76 parents, children and others — wrote that “the death penalty, rather than preventing violence, only perpetuates it and inflicts further pain on survivors.”...

We do not minimize the suffering of family members, wherever they stand on the issue. But the facts are undeniable.  The death penalty does not deter crime and the long history of legal abuses is well documented.  Connecticut’s full Legislature should pass the repeal bill and Gov. Dannel Malloy should sign it into law.

April 30, 2011 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, April 20, 2011

Can courts really develop "some principled method" for child porn downloading restitution?

I have now had a chance to read closely yesterday's very important and very throughtful DC Circuit child porn restitution opinion in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here).   The initial comments to my first post on the case spotlight how many dynamic (and circuit splitting) issues are addressed in the ruling, and I could (and might) do a series of posts on the many legal and policy issues implicated by this decision. 

But there is one especially notable paragraph from the DC Circuit panel in its remand ruling that I want to spotlight and concerning which I wish to encourage collective rumination.  Here is the paragraph:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount.  Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution.  The burden is on the government to prove the amount of Amy’s losses Monzel caused.  We expect the government will do more this time around to aid the district court.  We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

This paragraph is fascinating because it (1) spotlights why these child porn restitution cases are so hard (the case records have "relatively little ... to guide [court] decisionmaking"), and (2) stresses the prosecution's ultimate responsibilities and burdens here (the government must "submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image" and/or "suggest a formula for determining the proper amount of restitution" in order "to prove the amount of Amy’s losses Monzel caused"), and (3) obliges the district court to come up with some sound formula for sorting all this out while aslo giving it no assistance (the circuit judges here "express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused").

As the question in the title of this post hints, I am not confident that the district court in this case (or common-law courts in general) are going to be able to develop and apply "some principled method" for determining how much harm one particular downloader of one image of a widely-distributed kiddie porn picture proximately caused to the child abused in that picture.  I have been thinking about this issue for some time, and I am yet to figure out what principled method exists to link proximately the harm resulting from one particular instance of downloading/possessing this illegal image, especially given that the victim is unlikely even to become aware of that particular instance of downloading/possessing unless and until the downloader is criminally prosecuted and the government gives notice to the victim.

I certainly believe Congress could (and really should ASAP) develop and enact a rational and sound legislative formula for awards of restitution in kiddie porn downloading cases like this one.  But I cannot figure out just how courts can and should develop a "principled method" of appropriately linking one particular act of illegal image possession and the resulting proximate harm to the victim in the image. 

Perhaps readers have suggestions (including SC and Bill Otis and other frequent commentors who often stress victim interests); I am very eager to hear and discuss principled proposals.  And I suspect the district court in this case and others facing this issue could benefit from some collective brainstorming.

Some related recent federal child porn restitution posts:

April 20, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, April 14, 2011

"Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment"

The title of this post is the title of this new article by Erin Leigh Sheley, which is now available via SSRN.  Here is the abstract:

This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment.

Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society.  Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame.  Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.

April 14, 2011 in Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, April 09, 2011

"Not In My Name: An Investigation of Victims’ Family Clemency Movements and Court"

The title of this post is the title of this interesting study spotlighted here by the Death Penalty Information Center.  Here is the abstract:

Purpose: The goals of this project are 1) to document the patterns of opposition to the death penalty promoted by victims’ families following the ascendency of the retribution and closure arguments in support of capital punishment, and 2) to assess the scope and primacy of newspaper coverage of death penalty cases with anti-capital punishment covictims.

Methods: Content analysis of nationwide newspaper reports on capital offense trials from 1992-2009 is used to assess patterns of victim resistance to the death penalty over time, the reasons given for support or resistance to the death penalty, and the scope and primacy of the newspaper coverage of the capital case.

Results: The analysis reveals a significant increase in co-victim clemency movements across the study time period.  Further, articles representing pro-death penalty covictims received both significantly higher primacy of media coverage in section and page number and word count than did their anti-death penalty counterparts.  Lastly, a qualitative assessment of covictims' statements reveals several reasons for co-victim support or resistance to the death penalty.

Conclusions: Co-victim opposition to the death penalty in reaction to the ascendancy of retribution and closure justifications for capital punishment must be integrated into ongoing debates about the death penalty.

April 9, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, March 26, 2011

Notable media coverage of Fifth Circuit Amy child porn restitution ruling

The biggest development in sentencing jurisprudence this past week was the Fifth Circuit's fascinating (and suspect?) ruling that no proximate causation showing is needed to support a restitution order in the child pornography downloading case known as In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here).  Consequently, I am pleased to see from this new AP article, headlined "Legal experts: Ruling benefits child porn victims," that the traditional media is taking note of the Fifth Circuit's decision (which I first discussed here). 

Here are excerpts from the lengthy and effective AP piece:

Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case.  But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.

The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution.  Other national appeals court rulings, including in Georgia and Montana, have upheld restitution awards against individuals convicted of possessing child pornography.  But those courts interpreted federal law to require that victims show a more direct connection between what a defendant did and the harm victims suffered.

"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling.  "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."...   The 5th Circuit's decision reverses a previous decision by a different panel of the same appeals court that had ruled against Amy, who is now in her early 20s.

Stanley Schneider, Paroline's attorney, said he planned to appeal the ruling to the full appeals court and if needed to the U.S. Supreme Court.  "If a person is selling pornography ... or distributing the image, that is (one) question," he said.  "But if someone is sitting and doing nothing more than looking at images, possessing them, there has to be a causal connection" for the harm they have allegedly caused a victim.  Schneider said Amy did not know beforehand that Paroline had seen images of her.

[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them.  "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.

Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country.  The U.S. Attorney's Office for the Eastern District of Texas, which prosecuted Paroline and opposed Amy's appeal, declined to comment.

Under the law, victims of child pornography can be awarded restitution. But federal judges around the country have had varied interpretations of the restitution statute, with some awarding large amounts, others nominal amounts and others denying it altogether.  "Do I think it resolves the issue? As an advocate, I hope it resolves it. But it will eventually make its way to the Supreme Court," said Meg Garvin, executive director of the National Crime Victim Law Institute, located at Lewis & Clark College's School of Law in Portland, Ore.

Some related recent federal child porn restitution posts:

March 26, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, March 23, 2011

Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA

As Paul Cassell details in this post at The Volokh Conspiracy, on Tuesday "the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory [by accepting Paul's] arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded.  As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime."

As Paul further explains, the Fifth Circuit's ruling in In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here), if "followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive."  But, as noted in this prior post, the Eleventh Circuit in another case a few months ago, US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), decided there was a proximate cause limitation on whether and when a victim can obtain restitution in these sorts of child porn downloading cases.  (Notably, McDaniel cites a prior ruling in the Amy case, but this new Amy Unknown ruling does not mention McDaniel.)  It is not clear that the conclusions reached Amy Unknown will carry the day in other circuits, but it is now even clearer that the US Supreme Court will have to take up this issue before too long.

The Fifth Circuit opinion in Amy Unknown is authored by Chief Judge Edith Jones, and it starts and ends this way: 

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet.  Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3).  A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009).  This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA.  Consequently, Appellant’s petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline...

Incorporating a proximate causation requirement where none exists is a clear and indisputable error.  Amy is entitled to receive restitution under the CVRA.  We therefore GRANT Amy’s petition for panel rehearing and likewise GRANT her petition for a writ of mandamus.  Because the district court did not quantify the amount of restitution to which Amy is entitled or the fraction attributable to Paroline, the case is REMANDED for resolution of that issue.

Some related recent federal child porn prosecution and sentencing posts:

March 23, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Victim complains about Lawrence Taylor getting probation for sex crime

As detailed in this USA Today piece, the "underage girl who Lawrence Taylor admitted having sex with before a guilty plea to a sex charge said Tuesday that the sentence of probation given to the Pro Football Hall of Famer was too lenient."  Here is more:

The girl -- whom USA TODAY will not identify -- told reporters after Taylor was sentenced to six years probation in a New York court that she wanted to see him got to jail. "I am not a prostitute," she said. "I am a victim and I am hurting. I don't think the sentence given to Mr. Taylor is fair."

The girl was a runaway who was sent into a hotel room with Taylor in May 2010. Prosecutors have charged Rasheed Davis with being the pimp that sent the girl into Taylor's hotel room. The Hall of Famer admitted paying $300 for sex.

This AP piece provide more details about the sentencing and details that Taylor's probation term in six years and that he must register as a sex offender.

March 23, 2011 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Friday, January 28, 2011

Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader

An Eleventh Circuit panel has an important ruling today in US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), concerning the federal law and practice of imposing restitution terms in sentences for downloaders of child porn.  Here is how the McDaniel opinion begins along with some of the key legal determinations within the opinion:

Ricky Lee McDaniel was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).  The district court sentenced him to 60 months of imprisonment and three years of supervised release and ordered him to pay restitution to “Vicky,” a child depicted in one of his images.  McDaniel asks whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution.  For the following reasons, we affirm....

First, we agree with the district court that McDaniel “harmed” Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor....  Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within.  The end users of child pornography enable and support the continued production of child pornography.  They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child’s privacy by possessing their image.  All of these harms stem directly from an individual’s possession of child abuse images.  Thus the district court did not err in finding that Vicky was a victim of McDaniel’s possession of child pornography, and consequently, that she is eligible for restitution under section 2259....

Next, we hold that section 2259 limits recoverable losses to those proximately caused by the defendant’s conduct....  [T]he plain language of section 2259 ... covers, inter alia, “losses suffered by the victim as a proximate result of the offense.” § 2259(b)(3)(F)....

McDaniel next argues that his conduct did not proximately cause Vicky’s harm.  Instead, he contends that her father and the distribution of the images caused her harm, and by the time he possessed the images, the harm had already been done.  He asserts that restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.

We disagree.  Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues.  He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.”  We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)....  Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.

As a policy matter, I favor child porn downloaders having to pay some restitution to the children harmed and depicted in the pictures they download.  And, in this case, "the court ordered McDaniel to pay Vicky $12,700" to help cover the costs of therapy for Vicky, which does no seem like an unreasonable award under the circumstances.  But, for two reasons articulated below, I am struggling somewhat with how the McDaniel opinion gets to its ultimate conclusions on proximate cause in order to affirm the restitution award imposed by the district court.

1.  As the explained in the opinion, Vicky was notified that McDaniel had downloaded her picture onlybecause the "National Center for Missing and Exploited Children (NCMEC) compares images and identifies the children depicted within [and] notifies an identified victim every time someone is arrested who is found to possess his or her image [and] the Government submitted McDaniel’s collection of images and videos to the NCMEC for identification of known victims after McDaniel’s re-indictment in June 2008."  In other words, Vicky would never have known McDaniel had possessed her picture but forthe feds submitting the picture to the NCMEC andthe NCMEC altering Vicky that yet another person had her picture.  In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as "breaking the chain" of causation between McDaniel's offense of possession and the "slow acid drip" harms she experiences.

2.  Relatedly, given that "Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys’ fees," and given that a witness testified that "Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet," it is unclear how the district court decided the restitution award here should be $12,700.  Why not an award of the full amount of the cost of her future therapy?  Alternatively, why not find out from the NCMEC how many times they have notified Vicky about her picture (which I suspect is hundreds, if not thousands, of times), and apportion the award accordingly? 

Intrguingly, in a footnote to support its holding that proximate cause is required, the McDaniel opinion cites a key Fifth Circuit ruling to stress that "if there was 'no proximate cause requirement in the statute, a restitution order could hold an individual liable for a greater amount of losses than those caused by his particular offense of conviction.' In re Amy, 591 F.3d 792, 794 (5th Cir. 2009)."  In turn, shouldn't the Eleventh Circuit be worried that requiring McDaniel to pay $12,700 for possessing a picture that hundreds (and perhaps thousands) of persons have possessed does not in fact make liable for a greater amount of losses than those caused by his particular offense of conviction?  (McDaniel may not have appealed the amount of restitution awarded, but lots of district court have struggled and split over these issues that quickly get implicated once proximate cause is held to be a required showing.)

January 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack