Sentencing Law and Policy

"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."

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:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
• DC Circuit weighs in on host of challenging child porn restitution issues
• Ninth Circuit essentially demands Congress amend restitution law to allow victims to recover from child porn possessor
• Federal sentence for receiving child porn includes forfeiture of home
• Federal judge imposes large restitution punishment for downloading child porn
• Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders

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.

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.

Accuser tells Newsweek she wants to see DSK in jail

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

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

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

Prior posts on DSK charges:

• IMF Chief Dominique Strauss-Kahn denied bail in NYC sex assault case as alibi talk emerges
• DSK formally indicted, though gets bail with lots of conditions
• DSK to be freed from house arrest as victim's rape story being questioned

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

"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.

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.)

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

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.

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.

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.

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

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

• "Death penalty a tool for leverage; Prosecutors can use it to get something from defendant"
• "Death penalty not swift or certain, case shows"

Here is an excerpt from the first of these pieces:

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

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

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

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

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

Iranian judiciary postpones planned "eye for eye" punishment

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

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

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

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

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

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

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.

"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.

"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.

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:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• DC Circuit weighs in on host of challenging child porn restitution issues
• Restitution terms debated in another federal child porn downloading sentencing
• Another significant federal child porn restitution decision from NDNY district court
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• "Prosecutors seek nearly $200k for child porn victim"
•  Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders

"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.

"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.

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:

• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Restitution terms debated in another federal child porn downloading sentencing
• Another significant federal child porn restitution decision from NDNY district court
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• "Prosecutors seek nearly $200k for child porn victim"
• Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders