Friday, May 03, 2013

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal  prosecution.  But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."  Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property.  Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses.  All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings.  I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case."  And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations.  But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many?  most?  all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table.  Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims.  Consequently, I fear that many (most?  all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA.  And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

Some related recent posts:

May 3, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, April 25, 2013

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

April 25, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, April 19, 2013

Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev

This CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody."  Here are the basic details as of late Friday night:

The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.

Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead.  The younger Tsarnaev was in need of undisclosed medical care, the officials said.

After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...

Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston.  Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....

The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....

A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012.  Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity.  He came "a few years later" and was lawfully in the United States as a green-card holder.

In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now.  I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.

Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev.  Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case."  But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev.  Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.

Related posts:

April 19, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (83) | TrackBack

Saturday, April 13, 2013

Florida (finally!!) carries out sentence for child killer who murdered during Carter Administration

As reported in this AP article, "Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces."  Here is more of the story:

Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980.  Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke.  He was 59.

The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal.  The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began.  There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them.

Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher.  He said she was a Girl Scout who would take in stray pets and donated money she earned to charity.  She was a cheerleader who loved to dance and sing.

Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County.  He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school.  He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base.

He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed."... Elisa's parents, David and Wendy Nelson, watched in silence.  Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.

Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.

In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid."  They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote.

While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals.  His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death.

Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days -- over three times her entire life -- making a mockery of our legal system," he said.

Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann....

While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.

Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."

Though I still remain a troubled agnostic on so many aspects of the modern death penalty, here I share the view of the murder victim's brother that this case ended up "making a mockery of our legal system." If factual guilt was in doubt or if this was a complicated crime implicating competing culpability issues concerning the proper sentence, I suppose I could understand why it might take a decade or more to sort out and then carry out this killer's punishment.  But it seems guilt was never in doubt and that the details of the crime and the killer's basic culpability were relatively clear from the outset.

In other words, it appears that the chief reason why final resolution of this case took over 32 years was because the legal system was eager to have a sentencing debate churn over and over and over again.  I have long believed that there ought to be a basic rule that provides that if a death sentence cannot be reviewed and upheld through all levels of appeal within 15 years, then it ought just become an LWOP sentence in order to save everyone the time and aggravation of the continued uncertainty and legal fighting over the difference a quicker (execution) or slower (LWOP) death sentence. Indeed, I think it is interesting to speculate whether the family of the murder victims in this case would have been able to better more on with their lives if in, say, 1995 it was simply decided that Larry Eugene Mann would just serve LWOP. (It is also interesting to speculate whether Larry Eugene Mann might have died before April 2013 if he had gotten an LWOP sentence from the outset instead of a death sentence which surely led to him getting a lot more attention from lawyers and courts throughout the last three decades.)

April 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (22) | TrackBack

Thursday, April 04, 2013

Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal

This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing.  The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned."  The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:

Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.

A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:

"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."

A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.

Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.

For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.

Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.

UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.

April 4, 2013 in Enron sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 03, 2013

Some notable headlines in wake of state prosecutors' decision to seek death penalty for James Holmes

I was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:

From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"

From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"

From CNN here, "Why death penalty for Holmes wouldn't bring justice"

From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"

Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"

I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising.  But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.

Recent and older related posts (with lots of comments):

April 3, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, February 27, 2013

Sixth Circuit weighs in with instructions on restitution sentencing in child porn cases

A helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here).  Here is how the majority opinion gets started:

In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received.  Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases.  Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers.  Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.

Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:

I join all but part II.B of the Court’s thought ful opinion.  I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....

In determining the amount of a restitution award under § 2259, the courts can only do their best.  It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.

As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.

February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Monday, January 28, 2013

"Rethinking Restitution in Cases of Child Pornography Possession"

The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.

In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.

To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack

Sunday, January 27, 2013

Fascinating NY Times magazine cover story on child porn victims and restitution

27cover-sfSpanToday's New York Times magazine has this remarkable cover story headlined "The Price of a Stolen Childhood," which provides a fascinating profile of the two young women now at the center of legal disputes in federal courts nationwide over restitution sentences imposed upon defendants who download child pornography. The lengthy article has too many interesting facets to effectively summarize, but here is one snippet telling early parts of the legal aspects of the story:

Six months after [the first] sentencing [which included a restitution award in October 2008], [Amy's lawyer James] Marsh went after another child-pornography defendant, Arthur Staples, a 65-year-old sheriff’s deputy in Virginia, who had chatted online with an undercover detective and expressed an interest in young children. Staples sent one image of a young girl (not Amy), and he was caught with more than 600 pictures on his computer, including hers. Staples agreed not to appeal any sentence or restitution judgment. The judge sentenced him to 17½ years, and made the unusual move of ordering him to pay all of Amy’s claim. To Marsh’s surprise, Staples turned out to have $2 million in assets. He has since paid $1.2 million to Amy.  (Marsh says the government let Staples’s wife keep part of the estate.) While Amy has been turned down for restitution by some courts, which have stated that there was not enough proof that any one man who viewed her pictures was responsible for the harm she has suffered, she has won more than 150 cases, totaling $1.6 million. Most of the amounts aren’t large: $1,000 or even $100, paid out in checks as small as $7.33.

Nicole has also been pursuing restitution.  Her lawyer, Carol Hepburn, did her own research and got in touch with Marsh when she learned about the claims he was bringing for Amy. The two lawyers now collaborate on ideas and strategy, though they represent their clients separately. Since receiving her first check for $10,000, Nicole has collected more than $550,000, mostly in small amounts from 204 different men. So far only a few other child-pornography victims have gone to court for restitution. Many may not know there is a legal remedy; others don’t know their images have circulated....

Study after study links child sexual abuse to psychological trauma, addiction and violent relationships in adulthood. There is almost no research, however, that deals with the specifics of Amy and Nicole’s experiences: What additional harm comes from knowing that pictures of your childhood exploitation are circulating widely?

The Supreme Court actually addressed this question in its 1982 decision upholding child-pornography bans. “‘Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution,’” Justice Byron White wrote, quoting from a book about abused children. “‘Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.’”

David Finkelhor, a sociologist who directs the Crimes Against Children Research Center at the University of New Hampshire, sees the moral weight of the Supreme Court’s proclamation, but not the empirical proof.  “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself,” he told me. “How do you separate it out?”

Courts have disagreed on this question.  In at least a dozen cases, defendants have appealed restitution decisions and mostly won.  In five of those cases, federal appeals courts have expressed skepticism that Amy and Nicole should receive more than nominal restitution.  Two other appeals courts have allowed the young women to recover from individual defendants as members of the group of viewers but, so far, only for amounts of $10,000 or less. (Amy collected a far greater sum from Arthur Staples because he waived his right to appeal.)

January 27, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (35) | TrackBack

Saturday, January 05, 2013

"Can Forgiveness Play a Role in Criminal Justice?"

The title of this post is the headline of this fascinating article appearing in Sunday's New York Times Magazine.  The piece is about a sad Florida case in which a young man shot and killed his girlfriend and the role a restorative justice process used thereafter shaped the defendant's prosecution and sentencing.  There are lots of interesting passages in the full piece, and but this passage early in the piece caught my attention because of what it reveals about prosecutorial discretion and the distinct interests (and power) of some victims once they know the prosecutor's legal options:

“Unfortunately I have a lot of experience talking to the parents of dead people,” says Jack Campbell, the Leon County assistant state attorney who handles many of North Florida’s high-profile murder cases.  Sheriff’s deputies who were investigating the case told Campbell that the Grosmaires’ feelings toward the accused were unusual, but Campbell was not prepared for how their first meeting, two months after Ann’s death, would change the course of Conor’s prosecution.

Campbell had charged Conor with first-degree murder, which, as most people in Florida understand it, carries a mandatory life sentence or, potentially, the death penalty.  He told the Grosmaires that he wouldn’t seek capital punishment, because, as he told me later,  “I didn’t have aggravating circumstances like prior conviction, the victim being a child or the crime being particularly heinous and the like.”

As he always does with victims’ families, he explained to the Grosmaires the details of the criminal-justice process, including the little-advertised fact that the state attorney has broad discretion to depart from the state’s mandatory sentences.  As the representative of the state and the person tasked with finding justice for Ann, he could reduce charges and seek alternative sentences.  Technically, he told the Grosmaires, “if I wanted to do five years for manslaughter, I can do that.”

Kate [the mother of the murder victim] sat up straight and looked at Campbell.  “What?” she asked. Campbell, believing she had misunderstood and thought he was suggesting that Conor serve a prison term of just five years, tried to reassure her.  “No, no,” he said. “I would never do that.”  It was just an example of how much latitude Florida prosecutors have in a murder case.

What Campbell didn’t realize was that the Grosmaires didn’t want Conor to spend his life in prison.  The exchange in Campbell’s office turned their understanding of Conor’s situation upside down and gave them an unexpected challenge to grapple with.  “It was easy to think, Poor Conor, I wouldn’t want him to spend his life in prison, but he’s going to have to,” Kate says.  “Now Jack Campbell’s telling me he doesn’t have to.  So what are you going to do?”

“He’s so sorry he said that,” Kate says now, of Campbell.  “I mean, it opened the door for us.”

I urge readers, before clicking through to read the full New York Times piece, to consider what might have happened once a local prosecutor "opened the door" to a murder victim's family simply by telling them about the legal discretion he possessed to seek a more nuanced form of sentencing justice. I also welcome readers to opine on whether this story should be considered a vindication or violation of victims' rights given that the local prosecutor ultimately engineered a plea deal with a locked-in prison term that differed significantly from the sentence urged by the victim's family during the restorative justice "pre-plea" conference process.

January 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, December 04, 2012

"The Victims' Rights Amendment: A Sympathetic, Clause-by-Clause Analysis"

The title of this post is the title of this new paper by Paul Cassell available via SSRN.  Here is the abstract:

My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice.  In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments.  The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.

Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment.  Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions.  Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.

December 4, 2012 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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