Sunday, July 01, 2012
Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers
A few weeks ago at the US Sentencing Commission's annual conference, I had the great pleasure of meeting Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL). With the juve LWOP cases then still pending before SCOTUS, Jennifer and I had a fascination conversation about how victims of juve lifers would be impacted by a SCOTUS ruling declaring some juve LWOP sentences unconstitutional. Then, after the ruling, I asked Jennifer if she would write a guest-post for this blog, and here is what she kindly sent me for posting, reprinted in full:
Victims families' primary concern in the wake of the Miller v Alabama, Jackson v Hobbs ruling this week from the Supreme Court is for those like us who do not yet know about the case. We have been calling on all those involved to devote themselves now to outreach to affected victims families, hopefully delivering to them all the information and support they need to cope with the new legal realities just created by the Court. We already know that well-funded offender advocates are busily working already to assist many teen killers to file their new legal challenges. We have long been troubled by the significant staff and funding available to help those who murdered our family members, while there has been no assistance whatsoever to the victims families left behind.
But we also are confident that very little in these offenders' prison sentences will actually change, and here's why:
While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences. This matter will obviously be heavily litigated (see legal analysis at our website here). Cases still under direct appeal will be re-sentenced, but state legislatures will likely weigh in first, and victims families, along with the general public, can help shape how state legislatures decide to comply with the ruling.
State legislatures can simply make the LWOP sentences optional -- then judges can still give them to the offenders. Many will do just that. After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer -- a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative.
While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.
Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. While we know a few will receive some relief, we are predicting that very few teen killers serving life sentences will likely ever be released early from prison.
The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request. There was not a SINGLE vote on the Supreme Court to find all life sentences for teen killers unconstitutional. The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers is completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.
While NOVJL only exists to support and inform victims, and we take no specific stand on what sentencing should be (the purview of legislatures and courts) we did have some concerns with the majority opinion as written.
Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.” We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims. The only people in this discussion with death sentences are our murdered loved ones.
To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence. It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” -- someday. Many victims families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.
Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning. They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way. They can choose each day to make good things happen, even from their cells. Many inmates that we admire do just that. They can even express remorse for their crimes and try to be helpful to victims everywhere. They can live. Even from behind bars. They LIVE. The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.
Also, there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion. Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”. But the majority opinion gave no thought, apparently, to the impact of this decision on victims families.
Finally, some of us are actually feeling sorry for the families of the offenders affected by this ruling: right now they are likely very happy -- even celebrating -- feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life. Some are likely even planning the offenders’ homecoming. We know that this is going to end in disappointment for almost all of them. Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow. They committed horrific murders. Most will not likely ever qualify for release anytime soon, even if they are re-sentenced in a way that allows release possibilities.
Juvenile life without parole remains constitutional, rare, and available as a sentence when the facts of the offense and the offender demonstrate that it is appropriate. Our focus remains where it should be: assisting people whose lives have been destroyed by the violent choices of others, and preventing future such tragedies.
Monday, June 25, 2012
"Utah mom upset over judge's hair-cut punishment"
The title of this post is the headline of this intriguing AP article about a (too?) creative state sentencing in a juvenile court. Here are the details:
A Utah mother says she felt intimidated in court when a judge told her that he would reduce her 13-year-old daughter's sentence if she chopped off the girl's ponytail in court — an offer the mother says she now wishes she hadn't taken.
Valerie Bruno, of Price, said she has filed a formal complaint against 7th District Juvenile Judge Scott Johansen with the Utah Judicial Conduct Commission. The teenager and an 11-year-old friend were referred to juvenile court for cutting off the hair of a 3-year-old girl with scissors in March and for harassing another girl in Colorado by telephone.
When the 13-year-old faced Johansen for a hearing in May, he ordered she serve 30 days in detention and to perform 276 hours of community service, but he also offered to take 150 hours of community service off the sentence if her mother cut her ponytail in his courtroom.
Bruno is now expressing regret for not consulting an attorney before taking her daughter into the courtroom. "I guess I should have went into the courtroom knowing my rights, because I felt very intimidated," she told the Deseret News. "An eye for an eye, that's not how you teach kids right from wrong."
Mindy Moss, mother of the 3-year-old whose hair was cut off, said she approved of the sentence and even spoke up during the hearing when she felt Bruno had not cut off enough of her daughter's hair. Johansen then directed Bruno to cut the ponytail all the way "to the rubber band."
Moss told The Salt Lake Tribune that she originally called police about the haircut because she worried the girls' behavior could become more serious. "I didn't want them to think they got away with it … It was malicious," Moss said.
Under state law, judges are given discretion in coming up with sanctions for youth that will change their behavior in a positive way. Johansen ordered the friend of Bruno's daughter to have her hair cut as short as his. She was allowed to go to a salon to have it done, then return to the courtroom to ensure that the new hairstyle met with the judge's approval.
I know of plenty of lawyers who get upset when a judge orders a hair-cut on their fee requests. I also know that prisoners often complain if and when prison officials require them to get haircuts. But this is the first time I have seen a concern about a hair-cut as part of a sentencing ruling.
June 25, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Thursday, June 14, 2012
"Sentencing Councils and Victims"
The title of this post is the title of this new article posted on SSRN by Ian Edwards. Here is the abstract:
This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines.
While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.
Monday, June 11, 2012
Heated "victims" and "low" guideline range set up interesting sentencing for mobster's moll
This new AP article, which is headlined "Lawyer for Mass. mobster's lover asks for leniency," reports on the final pre-game development before a high-profile federal sentencing scheduled for tomorrow in a high-profile criminal case out of Boston. Here are the details:
The lawyer for the longtime girlfriend of Boston mobster James "Whitey" Bulger asked a judge on Monday to sentence her to 27 months in prison for helping the fugitive stay on the run for 16 years. Prosecutors have asked for a decade in prison for Catherine Greig, who faces sentencing Tuesday.
The 61-year-old pleaded guilty in March to charges of conspiracy to harbor a fugitive, identity fraud and conspiracy to commit identity fraud. The 82-year-old Bulger is awaiting trial on charges he participated in 19 murders. Authorities captured the couple in Santa Monica, Calif., last June. Prosecutors say the pair posed as married retirees from Chicago and had a stash of more than $800,000 in cash and 30 weapons in their apartment upon capture.
In a sentencing memo, Greig's lawyer Kevin Reddington said his client was in love with Bulger and there was no evidence she knew about the money or guns. He said Bulger was a "Robin Hood like" person and a "champion of the oppressed" when she fled with him, years before an indictment revealed "horrific allegations of murder."
The attorney called the government's sentencing recommendation a "draconian sentence" to crush someone prosecutors are trying to portray as a "sinister mastermind." Reddington also suggested that the government was trying to "rectify the bungling" of their investigation and redeem themselves from bad publicity. He said the government struck a plea deal with Greig, then faced criticism in the media from family members of those whom prosecutors say Bulger killed.
Greig faces a maximum of 15 years in prison, but prosecutors previously said she could serve as little as 32 months under sentencing guidelines. Reddington's memo says probation officials recommended a prison sentence of 27 to 33 months.
The defense attorney also singled out Steven Davis, the brother of a 26-year-old woman who prosecutor say Bulger killed in 1981, as spearheading criticism he says led to a post-plea effort by the government to give his client a long prison sentence. Greig's attorney also filed an objection Monday to a request from the U.S. attorney's office to allow Davis and other family of Bulger's victims to speak at her sentencing. He says they're not victims of Greig's crimes.
Prosecutors have called Greig's conduct the most extreme case of harboring a criminal they've seen. They said she protected Bulger from authorities, for years denying the family of his victims the chance to see him brought to justice. Davis said Monday that a sentence of 27 months "would be the most ridiculous thing to ever come out of federal court."...
Patricia Donahue, the widow of a man who died in a hail of bullets after prosecutors say Bulger opened fire on someone else in 1982, called the defense's request for 27 months in prison for Greig "a joke" that would encourage other people to harbor criminals. Donahue, of Boston, also said she was hoping to speak at Greig's sentencing. "How are we not victims of the crime if she spent 16 years with the man responsible for my husband's death?" Donahue said.
The specifics of this AP article prompt the quote marks in the title of this post, which in turn frame the interesting legal issues now presented by Catherine Greig's sentencing. I can see a good argument for calling the victims of Bulgler's crimes also victims of Greig's crimes of harboring and fraud (and I generally take an expansive view of who has rights under the federal Crime Victims Rights Act). But, especially if one credits Greig's claims that she did not know all about Bulger's homicidal past (and that folks are really most angry about how the feds have handled the Bulger case), I can also see a reasonable argument for limiting how victims of Bulgler's murders get to express themselves at Greig's sentencing.
Even more interesting for hard-core sentencing fans seems to be the distinct dynamic in this case of a defense attorney urging a sentencing judge to follow the guidelines while federal prosecutors seek some form of a departure from the guidelines. As all federal sentencing practitioners know, in nearly all post-Booker cases, the prosecutors are typically defending the guidelines and seeking within-guideline sentences while defense attorneys attack the guidelines as too harsh and seek non-guideline outcomes. But, in this distinctive case, it appears that the defense attorney will be praising the guidelines, while prosecutors (and perhaps also victims) argue that a within-guideline sentence would be unjust and inappropriate.
Previous related post:
- Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights
June 11, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, June 05, 2012
Notable appeal for clemency from victims' family rejected by Mississippi Gov
As reported in this AP article, which is headlined "Mississippi Gov. Phil Bryant won't stop execution for 1990 slayings," a plea for mercy coming from parents of children killed by a condemned murderer did not convince Mississippi's Governor to grant clemency on the eve of the execution. Here are the interesting details:
A Mississippi man who fatally stabbed four young nieces and nephews in a 1990 rampage faced scheduled execution Tuesday evening, despite the pleas of two sisters to spare the brother who murdered their children.
Henry "Curtis" Jackson Jr. was scheduled to die by injection at 7 p.m. EDT Tuesday. Jackson spent the day receiving relatives, including one of the sisters whose two children were kililed and who survived after being stabbed five times. The slain children ranged from 2 to 5 years old and were killed as Jackson allegedly was trying to steal his mother's safe while she was at church.
Late Tuesday afternoon, Gov. Phil Bryant declined to stop the execution. The mother of the slain children had asked Bryant to spare their brother. "I have reviewed the facts of this case and the applicable law," Bryant said in a news release. "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency."
But he said he was moved by the plea of the relatives. "I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law," Bryant said. "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children. However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed."
Corrections Commissioner Chris Epps said at a briefing Tuesday at the Mississippi State Penitentiary that Jackson acknowledged the crime and was talkative and writing letters after visiting with family. "This is somewhat unusual in that we have family members who are also victims," Epps said.
Among Jackson's visitors at the penitentiary in Parchman were his children, his mother and a sister, Regina Jackson was stabbed five times and survived the attack that killed her two daughters and two nephews.
Regina Jackson met with the governor Monday to plead for her brother's life. She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing."
"As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote....
Regina Jackson told The Associated Press in a telephone interview as the execution date loomed that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."
Another sister and her husband, Glenda and Andrew Kuyoro, also asked Bryant to spare Curtis Jackson in a letter dated May 15. The couple said they tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies.
"We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Epps said Regina Jackson and the Kuyoros planned to witness the execution.
Jackson has said he doesn't remember stabbing the children, but testimony from his trial describ ed a horrific scene. He cut the phone line before going in the house, according to the court record. Once inside, he demanded money and attacked his sister. One of the children tried to help, but he stabbed her, too. Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.
UPDATE: This local article reports on the completed execution of Jackson (and also notes that Mississippi's next execution is scheduled for next week).
Monday, May 28, 2012
Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign
At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example). This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:
The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.
There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.
"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved. Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it. If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."
Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing. Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.
Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received. Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.
Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."
The Ravi case is, of course, unique in many ways. Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.
Recent related posts on Ravi case:
- "Ravi found guilty on 24 of 35 charges in webcam case"
- "Ravi media tour carries risks at sentencing, experts say"
- Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
- New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes
- Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?
- Dharun Ravi sentenced to only 30 days in jail in NJ webcam case
Monday, May 14, 2012
Intriguing victim rights' issues raised by 9/11 husband's anti-death penalty position
The New York Post has this interesting new exclusive story headlined "Husband of 9/11 victim goes to Gitmo to spare plotters from death sentence." Here are excerpts:
The husband of a woman killed on 9/11 went to Guantanamo Bay on a shocking secret mission — to try to save the lives of the al-Qaeda monsters who planned the murder.
Blake Allison — one of 10 relatives of victims to win a lottery for tickets to the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices — had told people he was making the trip because "I wanted to see the faces of the people accused of murdering my wife." But while there, the 62-year-old wine-company executive held a clandestine meeting with the terrorists’ lawyers, in which he offered to testify against putting their clients to death.
A vocal critic of capital punishment, Allison wants to convince the US government to spare the lives of KSM and his minions even if a military commission convicts them of a slew of death-penalty charges. “The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post. “We can’t kill our way to a peaceful tomorrow.”
Allison’s 48-year-old wife, Anna, was a software consultant on her way to visit a client in Los Angeles when her plane, American Airlines Flight 11, was smashed into World Trade Center Tower 1 on Sept. 11, 2001.
In a lengthy conversation from his home in New Hampshire, Allison explained his controversial view — one he admits is not shared by his late wife’s relatives or by the other family members of victims he met at Guantanamo. “My opposition to the death penalty does not say I don’t want the people who killed my wife and [the other 911 victims] brought to account for their crimes,” he said. “But for me, opposition to the death penalty is not situational. Just because I was hurt very badly and personally does not, in my mind, give me the go-ahead to take a life.”
He said that “9/11 was a particularly egregious and appalling crime,” but added, “I just think it’s wrong to take a life.”
Allison, who has remarried, is under no illusion that the terrorists have reformed — and would not gladly kill more Americans. After staring at the fiendish faces of KSM, Ramzi bin al Shibh, Walid bin Attash, Mustafa al-Hawsawi and KSM nephew Ali Abdul Aziz Ali, Allison said he is certain they have “no apparent remorse and would do it again.”
Still, he said, “I’ve been opposed to the death penalty for decades, before my wife was murdered on 9/11. I’m still opposed to it.”
He said he spoke to other family members at Guantanamo and came to realize he was alone in his view. “I know they’re sincere in their beliefs,” he said. “They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”
The defense lawyers were pleased, but probably not terribly surprised to see him. Allison had previously testified on behalf of 9/11 conspirator Zacarias Moussaoui — the so-called 20th hijacker — who had faced the death penalty but was sentenced to a life term, which he’s serving in the Supermax prison in Colorado....
He said his opposition to execution is rooted in his Episcopalian faith. “When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’ That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”
As the title of this post highlights, I think there are some unique federal legal issues raised by Blake Allison's status as a crime victim and his vocal opposition to the death penalty when combined with the distinctive realities of the military commissions being used to try KSM and his ilk for the 9/11 mass murders. As regular readers know, after the 2004 passage of the federal Crime Victims Rights Act (basics here), Allison has an distinct and enforceable right to notice about and a "right to be reasonably heard" in any and all "public court proceeding." But what being "reasonably heard" and even what qualifies as a "public court proceeding" is an uncertain legal issue in the context of the military commission process. Among other interesting questions raised here is whether and how Allison could complain and/or appeal using the CVRA if he feels he is not having his rights as a victim respected by the feds through the military commission process.
Friday, April 20, 2012
"Murder victim’s family sues to enforce California death penalty"
The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:
The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.
Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.
The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.
In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.
“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.
Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.
The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.
The 30+ page petition in this action is available in full at this link.
Wednesday, April 18, 2012
Intriguing Second Circuit ruling on restitution awards and plain error
Today the Second Circuit handed down an interesting little white-collar crime ruling in US v. Zangari, 10-4546 (2d Cir. Apr. 18, 2012) (available here), which gets started this way:
In this appeal, we consider, as a matter of first impression in this Circuit, the propriety of substituting a defendant’s gain for his victims’ losses in calculating restitution under the Mandatory Victim’s Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A–3664. Although we join several of our sister circuits in concluding that such a substitution is error, we decline to exercise our discretion under Federal Rule of Criminal Procedure 52(b) to notice the error in this case because the defendant failed to object to the restitution calculation before the District Court and has not satisfied his burden of persuading us that the erroneous restitution order both “affected [his] substantial rights” and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citation and quotation marks omitted). The judgment of the District Court is therefore affirmed.
April 18, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack
Thursday, March 01, 2012
First Circuit jumps into circuit split in affirming child porn restitution award
In a long discussion at the end of a long opinion, the First Circuit yesterday weighed in on the various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader. Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Kearney, No. 10-2434 (1st Cir. Feb. 29, 2012) (available here), and here are some notable snippets:
Under § 2259, restitution may only be awarded to a "victim," which "means the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). Kearney contends that it is "unclear" that Vicky is a victim of Kearney's conduct, with little explanation.
Vicky is plainly a victim of Kearney's crimes. Any argument that Vicky has not suffered harm as a result of Kearney's crimes defies both fact and law....
It is clear to us that Congress intended some causal link between the losses and the offense to support the mandated restitution. However, in this statute, Congress also did not specify the level of causation except in one place -- the catch-all clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).
With the exception of only a Fifth Circuit panel (which relied on the difference in language between the catch-all clause and the other clauses) in an opinion which has been vacated for rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all other circuit decisions have said they interpret the statute as using a proximate causation standard connecting the offense to the losses.... The government does not dispute that a proximate cause test applies.
This seeming agreement on a standard suggests more harmony than there is. On rather similar facts the circuits have reached different outcomes in applying the proximate cause test, and those outcomes cannot be entirely explained by differences in the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding proximate cause but remanding to determine the amount of harm so caused), and McDaniel, 631 F.3d at 1209 (holding that the district court did not clearly err in finding proximate cause), with McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause was not established); Aumais, 656 F.3d at 154-55 (same), and Kennedy, 643 F.3d at 1263-65 (same). In our view, any proximate cause standard must be understood and applied in terms of the precise language of the statute and the clear intentions of Congress....
The restitution statute was enacted against a body of Supreme Court case law explaining the type of harm caused by distribution and possession of child pornography, including psychological harm, as discussed above. These cases make clear that injury to the child depicted in the child pornography, including injury that will require mental-health treatment, is a readily foreseeable result of distribution and possession of child pornography.
Wednesday, February 08, 2012
"Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing"
The title of this post is the headline of this new piece from Hadar Dancig-Rosenberg and Dana Pugach, which in now available via SSRN. Here is the abstract:
Should the victim of a domestic crime be entitled to express her views and concerns when her violent spouse is being sentenced, even if her request is for leniency? This may well be the most difficult question for supporters of victims' rights, who are accustomed to relate to victims who ask for severe sentences for their assailants. This question is affected by the complicated conflicting interests at the sentencing stage. The harm suffered by the victim of an offense is pitched against the personal profile of the assailant and the public interest.
This article seeks not only to confront this issue but also to suggest a progressive resolution model, based on firm ground. At the base is a unique interpretation and application of an expressive theory of criminal justice. It is then supported by a complex feminist view and psycho-social research that will be used to highlight the flexibility required of any suggested solution. This uniqueness will be explained by the characteristic dynamics of a violent relationship and the inherent differences between the women being discussed and the abstract category of 'classic (female) victims' asking for harsh sentences to be imposed on their attackers.
The article not only challenges sentencing theorists and supporters of 'classical' criminal law theory but also certain feminist theories, as it analyzes these issues from the perspective of conflicting theories, paternalism versus autonomy, and asserts their inadequacy in this case. The authors call for the adoption of a complex feminist view instead of the dichotomous understanding of the autonomy-paternalism tension. This argument necessitates a resolution-sensitive model that recognizes the variety of situations reflecting the actions of women living in the shadow of violence and functioning from a position of partial autonomy. A development of a multi-dimensional model that recognizes the plurality of female typology is essential in order to best serve this multifaceted victims' rights theory. The article then translates the theory into practice and suggests using Victim Reports as a means of empowering the women, hearing their authentic voices, enriching the Criminal Justice System and, potentially, even advancing the study of violence.
Though this piece provides a distinctively gendered perspective on victims' rights at sentencing, I believe it taps into some important broader themes. Just as every criminal offender has distinct and dynamic characteristics than will be effected by various punishment options in distinct and dynamic ways, so too do victims often have distinct and dynamic characteristics that call for sophisticated and nuanced sentencing laws and practices in order to best serve their diverse interests in different cases.
Friday, January 13, 2012
Do all agree that "priest deserves to be treated like any other criminal"?
The question in the title of this post is prompted by this local commentary discussing today's upcoming federal sentencing for a priest whose gambling habit turned him into a federal felon. The commentary by Jane Ann Morrison is headlined "Thieving priest deserves to be treated like any other criminal," and here are excerpts which providing background on the case and the sentencing debate:
The thieving, gambling monsignor who stole $650,000, mostly from his church's votive candle fund, has his supporters who want him to receive probation Friday. I'm not one of them.
Nor is the U.S. Department of Probation, which recommends he spend 33 months in prison, which is the low end of the federal sentencing guidelines. The high end would be 41 months. U.S. District Judge James Mahan won't be bound by the probation recommendation when he sentences Monsignor Kevin McAuliffe at 10 a.m. Friday. He can show leniency. Or not.
McAuliffe's attorney, Margaret Stanish, has an uphill battle when she argues his gambling addiction and his mental disorders and depression are reason to give him clemency. She's arguing for probation, so he can stay an active priest and help other gambling addicts. Why should an addicted priest get a pass from prison when other gambling addicts don't? That's unfair.
Nevada federal judges haven't been forgiving with others who steal because they want to gamble with money that's not theirs, partly because sentencing guidelines say gambling addiction is no reason for a judge to reduce a sentence.
Elizabeth "Becki" Simmons, a paralegal in the U.S. attorney's office with a fondness for gambling was sentenced to 30 months in prison by U.S. District Judge Johnnie Rawlinson in 1999. Simmons creating a scheme in which she was able to steal more than $1 million from the U.S. Marshals Service witness fund between 1988 and 1998 by creating fake witnesses. She did the time but never paid restitution. The prosecution noted the divorced mother of two had a pattern of gambling four hours a night, four times a week.
In May, U.S. District Judge Kent Dawson sentenced Ely City Councilman Stephen Marich, a cashier at the First National Bank of Ely, to 78 months in prison. Marich admitted to stealing at least $3.7 million over 12 years. (Auditors estimated it was actually about $5.9 million.) Dawson rejected the "compulsive gambling disorder" defense, noting that Marich was gambling using the bank's money and not his own.
McAuliffe was doing the same. He wasn't gambling his savings, he was gambling money mostly meant for St. Elizabeth Ann Seton Catholic Church in Summerlin, where he was the pastor. Most of the theft was from looting the votive candle fund. He also created false financial records so that St. Elizabeth was underreporting its financial condition and shortchanging the Las Vegas Diocese about $84,500. That's why he pleaded guilty to three counts of mail fraud; he mailed fraudulent documents.
Despite his theft, McAuliffe "left the parish and school debt-free and in excellent financial health," his attorney wrote. A more deceitful image of McAuliffe emerged from Assistant U.S. Attorney Christina Brown's sentencing memo. She noted the priest lied to the FBI when first asked why his income hasn't matched his expenses since 2002....
Should the monsignor be treated different than the thieving Las Vegas paralegal and the thieving Ely bank cashier? Absolutely not.
Though the Catholic Church teaches forgiveness, McAuliffe should be treated like any other criminal, because that's what he is. In court, McAuliffe shouldn't be held to a higher standard because he is a priest. But the priest doesn't deserve a pass from prison.
Without knowing more of the facts, I am disinclined to assert that either probation or nearly three years in prison is a fitting sentence in this case. That said, though I agree that a priest does not "deserve a pass from prison" in all settings, I also resist the notion that a priest "should be treated like any other criminal."
For a wide variety of reasons, I do not think that a priest really is similarly situated to all other federal criminals. In this setting, I would be especially interested to know about, and be responsive to, the "victims" of his crimes: if this priest's parishioners are among his supporters urging a probation sentence (presumably because they genuinely feel he can do more good for them on probation than in prison), my commitment to victim interests at sentencing pushes me toward thinking this man of the cloth ought to get at sentencing some of the very forgiveness that the church preaches and that his parishioners may be eager to demonstrate. (But, then again, maybe my sympathetic sentencing judgment in this case is being unduly influenced by my deep (tongue-in-cheek) concerns about the enduring "War on Christmas" and the "War on Religion" that I hear is being waged in the US.)
UPDATE: This AP story, headlined "Gambling Priest Gets 3 Years Prison in Vegas Case," suggests that the federal district judge sentencing Monsignor Kevin McAuliffe might have considered the occupation of the man he was sentencing an aggravating factor. Here are the interesting details:
Muffled sobs erupted Friday in a courtroom packed with supporters of a Roman Catholic priest who was sentenced to more than three years in federal prison and ordered to repay $650,000 he acknowledged embezzling from his northwest Las Vegas parish to support his gambling habit.
Monsignor Kevin McAuliffe, 59, stood straight and offered no reaction as U.S. District Judge James Mahan credited him for accepting responsibility for looting parish votive candle, prayer and gift shop funds for eight years, but faulted him for "hedging his bet" by blaming it on a gambling addiction....
Defense attorney Margaret Stanish asked the judge for probation so McAuliffe could continue getting counseling for his gambling addiction, keep practicing as a priest and pay restitution to St. Elizabeth Ann Seton Church in Summerlin. He won't get treatment in federal prison, Stanish said. "Is it all about retribution?" she asked the judge. "This court has the ability to fashion a punishment that takes into account not only the offense but the individual. He would not be here but for a gambling addiction."...
But Assistant U.S. Attorney Christina Brown characterized McAuliffe as an opportunist and thief who didn't exhaust his own savings before taking church cash to fund gambling, cars and travel. She accused him of grasping at gambling addiction as "a hollow excuse offered now, when he's desperate for leniency from the court."...
The judge referred to a parish rift over McAuliffe's crime when he said he received approximately 100 letters of support through the priest's defense attorney. Mahan also made part of the court record a stack of letters parishioners sent straight to the court saying McAuliffe should be punished. "I expect the church to forgive him, and the parishioners by and large to forgive him," Mahan said from the bench. "That's different than the justice system."...
Mahan handed down a 37-month sentence — midway between the 33-month minimum and 41-month maximum recommended by federal probation officials — along with the restitution order. The judge also sentenced McAuliffe to three years of supervised release following prison and banned him from gambling. McAuliffe was ordered to begin serving his sentence April 13.
Outside court, longtime parishioner Regina Hauck, 80, called the judge fair but the sentence unfair. She said she wanted forgiveness. "I know him. He's a wonderful priest," Hauck said of McAuliffe. "But I think he's a sick man, and everyone makes a mistake."
January 13, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (17) | TrackBack
Monday, January 09, 2012
Notable paper urging a different model for victim involvement in criminal justice system
Via this post at Right on Crime, I came across this interesting new paper from the Partnership for Safety and Justice about victim involvement in the criminal justice system titled "Moving Beyond Sides: The Power and Potential of a New Public Safety Policy Paradigm." Here is a paragraph describing the goals of the paper and another from the introduction revealing its key themes:
This paper is designed to foster critical dialogue and actual movement toward more proactive and thoughtful collaboration between crime survivor advocates and criminal justice reform advocates who have a shared stake in creating a system focused on long-term, evidence-based policies best equipped to create safe and healthy communities....
When examining the propagation of tough on crime policies, particularly at the state level, certain crime victim advocates have played a powerful role. These victim organizations and activists have created the emotional impetus for the passage of tough on crime policies. Both intentionally and unintentionally, these high-profile “victim advocates” have become the de facto representatives of the victims’ perspective among the media and policymakers, while the authority and scope of their perspectives remain largely unchallenged. What usually goes unnoticed in criminal justice policy debates is the absence of the diversity of victims’ perspectives. The communities most impacted by crime and violence — low-income communities, communities of color, and women — are rarely taken into consideration by these high-profile victim advocates who are primarily coming from a white, male, and middle-class perspective. It is not unusual that the people with privilege and the most access to the system have an easier time getting the system to respond when personally affected; but the most dominant voices among victim advocates don’t reflect the full spectrum of victim experiences and perspectives and are advancing a narrow policy agenda that has actually damaged some communities.
Wednesday, December 07, 2011
"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"
The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:
Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society. In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259. Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.
Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts. As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.
To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear. Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.
Monday, November 21, 2011
North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim
Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook. But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways. Here are the details:
A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims. Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court. Judge Stuart Albright sentenced his as a habitual offender.
Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001. Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.
Gaston had been a registered sex offender since November 26, 2003. He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.
Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites. "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.
Some related posts:
- "Facebook membership could prove costly for sex offender"
- Should all sex offenders be barred from Facebook and MySpace?
- Is it constitutional to criminalize having a Facebook page?
- Should a prison sentence necessarily halt all access to all social media for all purposes?
UPDATE: This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:
Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses. California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....
"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...
Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said. "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...
The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year. Six years ago, they found just 261. The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....
In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders. Social networks now cut out the middle man....
Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars. In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.
Friday, November 04, 2011
Are you ready for some football ... Ponzi scheme sentencing news?
With apologies for the weak late Friday headline, here is part of this AP account on a notable long sentence imposed on a Ponzi schemer who bilked a number of notable clients:
The former CEO of a Texas-based investment firm was sentenced to 17 years in prison Friday for a scheme that used former NFL players to bilk hundreds of investors out of more than $50 million.
Several of his victims watched as Kurt Branham Barton, the former head of Triton Financial, gave a tearful apology at the hearing in Austin. "I never intended for any of this to happen," said Barton, 43, as he choked back tears. "I feel terrible about what's happened."
He was convicted in August on 39 counts, including more than a dozen each of wire fraud and money laundering.... Investors including Barton's family and church members thought their money was for real estate deals and business loans. Prosecutors say Barton spent much of the money on himself, using it to pay for such things as a luxury box at University of Texas football games and a $150,000 car.
Former NFL quarterback Ty Detmer testified during the trial that he considered Barton a close friend and lost most of this life savings, about $2 million. Other athletes who prosecutors said promoted or invested with Triton were Heisman Trophy winner Earl Campbell, former NFL quarterback Jeff Blake and NFL kicker David Akers. Akers said he lost more than $3 million. None of the athletes were accused of wrongdoing.
The Ponzi scheme bilked more than 300 investors over four years before ending in December 2009, prosecutors said. He was able to raise about $75 million from investors, only about $20 million of which went to legitimate business purposes, prosecutors said. Many of the investors lost their retirement savings in the scheme.
"He took my money for his fun ... and didn't do what he told me he was going to do," said Charles Dickens, one of Barton's investors. He said victims "wanted to just get by a little better, try to improve our lot. Now it's all gone."
Attorney Rip Collins said Barton was trying to run a legitimate yet mismanaged business and believed it could be turned around.... Speaking to U.S. District Judge Sam Sparks, Kurt Barton's father, Chuck Barton, said it had been "one of the most horrifying experiences of our life."...
Many of Barton's friends and family submitted letters in support, insisting to the court that Barton is a good father and upstanding citizen — not the vicious predator prosecutors had described.
One was from former Dallas Cowboy Tony Dorsett, who called Barton a friend and an "honest, hard-working, God-fearing family man that cares about people and community."
I know that people losing their life savings to a fraud is no laughing matter, nor is the sentencing of even a scoundral to nearly two decades in prison. Nevertheless, on a Friday afternoon before a big football weekend, I cannot help but want to encourage some readers to suggest fitting or funny headlines for the story of a man who robbed from the likes of Ty Detmer, Earl Campbell, and Jeff Blake. Also, the fact that one of the victims who testified at sentencing was named Charles Dickens(!?!) surely is a sign that this busy week should be concluded with some punny comments on this story.
Saturday, October 15, 2011
"Killer's plea deal outrages family" ... because of lack of DP in NJ?
The title of this post is part of the headline of this local article out of New Jersey, along with my follow-up question and concern. First, here are excerpts from the article:
A 25-year-old Camden gang leader who sanctioned the grisly killings of a Burlington County couple last year was sentenced to 30 years in prison for the crime Friday, despite outrage from a victim’s family.
Muriah Huff’s uncle, grandmother and cousins asked Superior Court Judge Irvin Snyder to reject the plea deal for Kuasheim “Presto” Powell offered by the Camden County Prosecutor’s Office in favor of a jury trial and potential life sentence. “Justice was not served. The system is broken,” said Earl Huff, uncle of 18-year-old Muriah.
In accordance with the deal, Snyder sentenced Powell to a pair of 30-year sentences for pleading guilty to the murders of Huff and Michael Hawkins, as well as two 20-year sentences for his guilty plea in the shooting of two Pennsauken brothers in a separate incident. Powell will serve the sentences concurrently, meaning he could be released when he is in his 50s. He must serve a minimum of 30 years, including time served of 19 months.
Camden County Assistant Prosecutor Mary Alison Albright said by agreeing to a deal, her office ensured Powell would spend time in prison rather than taking a chance he would be found not guilty. “With a guilty plea, we control the outcome,” Albright said. As part of the plea, Powell is committed to testifying against any co-defendants who go to trial.
Authorities said Huff, of Cinnaminson, and her boyfriend, 23-year-old Michael Hawkins, of Mount Holly, were tortured over a period of hours by young Bloods members in a row home on the 500 block of Berkley Street in Camden.
Powell, the admitted leader, ultimately ordered the pair be killed. He shot Hawkins six times in the head. Huff was beaten with a chair, choked with a rope, stabbed and suffocated. Authorities said Hawkins was killed as part of a gang dispute. Huff was killed simply to cover up Hawkins’ death....
[T]he family’s frustration boiled over Friday at the thought that Powell could walk free some day. “He shouldn’t have the opportunity to get out and enjoy a life after prison,” Huff’s cousin, Natasha Huff, told Snyder during the hearing.
“For him to be able to sit here and play let’s make a deal … something is wrong with the system,” Earl Huff added later. Shortly before handing down the sentence Snyder said, “The family is right. Thirty years doesn’t cut it.”...
Powell was the oldest of the gang members charged, and as such, admitted during his guilty plea the others looked to him during the killings. While he laughed and smiled while talking with his attorney before the hearing, Powell later told Snyder he was sorry for the crimes and that jail has changed him.
Powell said he has no explanation for his past actions, which he said he has replayed in his mind during his time in prison. When Powell pleaded guilty in August to his role in the Feb. 22 killings of Huff and Hawkins, he also admitted shooting two brothers in Pennsauken the day before. “If I could go back in time, I would change things,” he said.
Snyder dismissed Powell’s apology as continued manipulation. “I don’t believe anything you are saying about how you feel,” he said before handing down the sentence.
As suggested in the title of this post, I fear that this (seemingly too) lenient plea deal for a multiple murderer is a direct result of New Jersey's decision to abolish the death penalty in the state. In states with the death penalty, plea deals for these kinds of horrific crimes will often involve prosecutors taking death off the table in exchange for a plea that carries a life with parole or an LWOP sentence. But in NJ now, LWOP is the longest possible sentence that can be threatened even after a full trial, so state prosecutors have to offer something less to get even a mass murderer to be willing to give up his right to roll the dice at trial.
Regular readers know that I consider the impact on plea practices to be a unique and potentially potent argument in favor of the death penalty, though one not ever discussed sufficiently. This New Jersey case serves as another prime example of how the abolition of the death penalty may permit a distinct kind of sentencing injustice.
Wednesday, September 14, 2011
"Family of alleged hate-killing victim opposes death penalty in case"
The title of this post is the headline of this CNN report which provides a notable example of a situation in which respecting the wishes of crime victims would result in potential (undue?) sentencing leniency. Here is how the piece starts:
The family of an African-American man who died after allegedly being beaten by a group of white teens and run over by a truck is asking state and federal officials not to seek the death penalty in the case.
Relatives of James Craig Anderson, who died shortly after receiving his injuries on June 26, sent a letter with their request to the prosecutor in the case, Hinds County District Attorney Robert Shuler Smith. "We ask that you not seek the death penalty for anyone involved in James' murder," the letter states; the letter is signed by Barbara Anderson Young, James Craig Anderson's sister who is in charge of, and speaks for, his estate.
The letter states that the family is opposed to the death penalty partly for religious convictions. "Our opposition to the death penalty is deeply rooted in our religious faith, a faith that was central in James' life as well," the letter states. But the family goes on to explain that there is another reason for their opposition, one that is tied to Mississippi's racial past.
"We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites," the letter states. "Executing James' killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."
The family has been mostly private in its grief, but the letter sent to the DA's office alludes to what the family is going through. "Those responsible for James' death not only ended the life of a talented and wonderful man. They also caused our family unspeakable pain and grief. But our loss will not be lessened by the state taking the life of another," it says.
The death of James Craig Anderson, 48, occurred early June 26 in Jackson, allegedly at the hands of white teens who, after a night of partying and drinking, decided to go looking for black people to assault, law enforcement officials have said, quoting one of the suspects in the case.
Anderson's death drew national attention after CNN first reported it and aired exclusive surveillance video of the actual killing, captured by a parking lot security camera in a Jackson suburb. Smith, the district attorney, has called it "vicious" and a "premeditated hate crime."
"We have a racially motivated killing," said Smith, asserting that the group of white teens sought out a black person to kill. "The teens came to Jackson and they picked out a black man, an innocent victim. They assaulted that victim, and then they just killed him."
Thursday, September 08, 2011
Second Circuit panel reverses child porn restitution award to "Amy"
The Second Circuit has today issued an important new opinion in the on-going saga concerning whether and how the kids victimized by being featured in illegal child pornography can secure restitution awards from defendants who downloaded these pictures via the internet. The panel opinion in US v. Aumais, No. 10-3160 (2d Cir. Sept. 8, 2011) (available here), gets started this way:
Gerald Aumais (“Aumais”) appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months’ imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of “Amy” (a pseudonym), one of the victims depicted in the images and videos. Aumais challenges the restitution order on the ground that his possession was not a proximate cause of Amy’s loss. Aumais also argues that the district court committed procedural and substantive error in sentencing him to 121 months’ imprisonment. We conclude that: based on the facts in this case, Aumais’ possession of Amy’s images was not a substantial factor in causing her loss; and that the district court committed no procedural or substantive error in imposing the sentence of imprisonment. Affirmed in part and reversed in part.
And here are the key concluding paragraphs in the court's restitution analysis from the later part of Chief Judge Jacobs' opinion for the panel (with cites omitted and emphasis in original):
The magistrate judge found that “Amy had no direct contact with Aumais nor even knew of his existence.” Amy’s Victim Impact Statement makes no mention of Aumais (or any other possessor of her images for that matter). Moreover, Dr. Silberg’s evaluation of Amy, upon which the doctor’s testimony was based, took place on June 11-12, 2008, July 29, 2008, and November 10, 2008, whereas Aumais was not arrested at the border until November 16, 2008. While Dr. Silberg may describe generally what Amy suffers from knowing that people possess her images, Dr. Silberg cannot speak to the impact on Amy caused by this defendant.... Here, in the absence of evidence linking Aumais’ possession to any loss suffered by Amy, we cannot agree with the magistrate judge’s conclusion that “Aumais’ conduct remains a substantial cause of [Amy’s] harm.”
This opinion does not categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images. We have no basis for rejecting Dr. Silberg’s findings that Amy has suffered greatly and will require counseling well into the future. But where the Victim Impact Statement and the psychological evaluation were drafted before the defendant was even arrested -- or might as well have been -- we hold as a matter of law that the victim’s loss was not proximately caused by a defendant’s possession of the victim’s image.
It will be very interesting to see whether prosecutors or the folks who have been representing "Amy" and other victims in seeking restitutional awards will pursue further review of this ruling. The forcefulness of this ruling (which comes on the heels of a similar pro-defendant ruling from the Ninth Circuit a few months ago) may lead many child porn defendants, and even those outside of the Second Circuit, to resist even more forcefully these kind of restitution claims in district courts. For that reason (and others), those who advocate for restitution awards in these kinds of cases may be especially eager to at least try to have Aumais further reviewed.
Some related recent federal child porn restitution posts:
- 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
Saturday, August 27, 2011
Should guidelines actually call for a sentence increase if a defendant apologizes?
The provocative question in the title of this post is prompted by this provicative new paper available via SSRN by Professor Murat Mungan. The paper is titled "Don't Say You're Sorry Unless You Mean it," and here is the abstract:
Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature. This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state. In this paper, I develop a formal framework in which one can analyze remorse and apologies.
I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible. This will lead victims, upon receiving apologies, to forgive offenders more frequently. Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence. An (arguably negative) effect of pricing apologies is its elimination of insincere apologies. If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.