Thursday, March 01, 2012

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

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

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

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

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

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

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

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

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

Wednesday, February 08, 2012

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

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

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

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

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

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

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

Friday, January 13, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 09, 2012

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

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

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

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

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

Wednesday, December 07, 2011

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

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

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

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

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

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

Monday, November 21, 2011

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

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

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

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

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

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

Some related posts:

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

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

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

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

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

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

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

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

Friday, November 04, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, October 15, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 14, 2011

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 08, 2011

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

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

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

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

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

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

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

Some related recent federal child porn restitution posts:

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

Saturday, August 27, 2011

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

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

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

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

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

Saturday, July 30, 2011

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

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

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

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

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

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

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

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

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

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

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

Monday, July 25, 2011

Accuser tells Newsweek she wants to see DSK in jail

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

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

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

Prior posts on DSK charges:

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

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

Wednesday, July 13, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 11, 2011

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

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

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

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

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

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

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

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

Friday, June 24, 2011

Sentencing meets the First Amendment in DC Circuit material witness ruling

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

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

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

Tuesday, June 07, 2011

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

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

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

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

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

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

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

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

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

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

Sunday, June 05, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 28, 2011

Oregon Supreme Court clarifies importance of victim rights at sentencing

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

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

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

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

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

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

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

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

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

Sunday, May 15, 2011

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

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

Here is an excerpt from the first of these pieces:

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

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

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

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

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

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