Tuesday, March 09, 2010

"Restitution for Child Pornography Victims"

The title of this post is the headline given to this local public radio show on an interesting cutting-edge topic which I have covered at some on this blog.  Here is the set up:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Guests:

Ernie Allen, President and Chief Executive Officer of the National Center for Missing & Exploited Children and the International Centre for Missing & Exploited Children

Steve Kelly, Attorney with the Maryland law firm Miles & Stockbridge and Commissioner on the Maryland Criminal Injuries Compensation Board

Jonathan Turley, Professor of Public Interest Law at George Washington University; practicing defense attorney

Some related recent federal child porn prosecution and sentencing posts:

March 9, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (9) | TrackBack

Tuesday, March 02, 2010

Notable First Circuit ruling on CVRA appeals and orders of restituion

A First Circuit panel has today handed down a notable ruling concerning crime victim rights and appellate procedures under the CVRA in US v. Aguirre-González, No. 08-1276 (1st Cir. Mar. 2, 2010) (available here). Here is the panel's own summary of its work:

We asked the parties to brief a series of questions pertaining to the right of crime victims to seek appellate review of restitution orders imposed as part of a defendant's criminal sentence. After careful consideration, we hold as follows.  First, a petition for a writ of mandamus under the CVRA is the exclusive mechanism for appellate review of sentencing orders affecting crime victims' rights. Next, the 72-hour time limit for mandamus review imposed by the CVRA is precatory, not mandatory, such that appellate courts retain authority, in appropriate circumstances, to consider petitions after the expiration of that deadline.  Nonetheless, in this case, we do not exercise our discretion to convert appellant's direct appeal into a mandamus petition, as consideration of the petition on the merits at this late date would be fruitless in light of the CVRA's express concern for finality in criminal sentencing orders.  Accordingly, we have no need to address what standard of review applies to timely mandamus petitions under the CVRA.

March 2, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Monday, March 01, 2010

Another notable CVRA ruling from the Sixth Circuit

As noted in this post last week, the Sixth Circuit disposed of an interesting mandamus petition from crime victims in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010).  Another Crime Victims' Rights Act ruling comes from the Sixth Circuit today in the same basic matter involving a criminal antitrust conspiracy in In re McNulty, No. 10-3201 (6th Cir. Mar.. 1, 2010) (available here), and here is a notable snippet:

[W]e agree with the district court’s holding that McNulty is not a victim for the purposes of the CVRA. The alleged harm to McNulty stemmed from his firing for refusing to participate in the conspiracy and his “blackballing” from employment with packaged-ice companies until he stopped working with the government in exposing the conspiracy. If proven, these would indeed be harms to McNulty, but they are not criminal in nature, nor is there any evidence that they are normally associated with the crime of antitrust conspiracy.

To fire an employee and prevent a former employee from being hired by another company may be illegal under the civil law, but they are not inherently criminal actions, nor are they actions inherent in the crime of conspiracy to violate antitrust laws to which Arctic Glacier pled.  Civil, not criminal, remedies are available to redress these actions.

March 1, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 24, 2010

Off to Miami for National Institute on White Collar Crime

N10wcc1 As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute.  I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.

Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General.  In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule."  Here is how my panel is titled and described:

SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.

February 24, 2010 in Booker and Fanfan Commentary, Booker in district courts, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, February 23, 2010

Notable CVRA ruling from the Sixth Circuit rejecting victims' plea to reject corporate plea deal

The Sixth Circuit disposed of an interesting mandamus petition from crime victims this morning in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010) (available here). The corporate setting, and the crime victims' requested relief, make this ruling especially notable, and here are snippets from the opinion:

This petition for a writ of mandamus and a related appeal arise from the proceedings in United States v. Arctic Glacier Int’l Inc., No. 1:09-cr-00149 (S.D. Ohio).  In that case, Arctic Glacier International was charged in a criminal information with violating 15 U.S.C. § 1 by participating in “a conspiracy to suppress and eliminate competition by allocating packaged-ice customers in southeastern Michigan and the Detroit, Michigan metropolitan area.”  The petitioners describe themselves as “nine consumers and one business that paid too much for packaged ice as a result of Arctic Glacier’s offense” based on purchases both within and outside of the geographic area of the offense.  Their civil action for damages is pending in the Eastern District of Michigan. In re Packaged Ice Antitrust Litig., No. 08-md- 1952 (E.D. Mich.). In these criminal proceedings, the petitioners claim to be victims of the crime under the Crime Victims’ Rights Act, 18 U.S.C. § 3771....

Whether these petitioners as indirect purchasers were “directly and proximately harmed” by the actions of Arctic Glacier is an issue that is largely beside the point, because we conclude thatthe district court afforded them the status of crime victims.  That is, the petitioners were allowed a full opportunity for participation.  That included their appearance through counsel at the arraignment, at the plea hearing, and at sentencing.  The district court delayed a decision on whether to accept the guilty plea to allow counsel for the petitioners an opportunity to confer with government counsel. Counsel for the petitioners admitted at the sentencing hearing that upon their entry into the case, the district court had afforded them every opportunity for participation.  Notwithstanding that active participation, the petitioners assert a right to an earlier notice prior to filing of the charges and direct involvement with the government’s negotiation of a plea agreement.  The petitioners’ right to such notice is uncertain, and based on the record in this case, we do not find this to be grounds for relief in mandamus.

The petitioners disagree with the district court’s final decision, made after hearing from them on multiple occasions, to accept the plea agreement and impose sentence pursuant to that agreement.  They object that the plea agreement makes no provision for restitution in deference to the pending civil causes of action.  They seek through this petition to vacate the plea agreement, to direct the district court to reopen the proceedings, and to participate as a party to the renegotiation of a plea agreement that will include provisions for restitution in their favor.  Although the Act reaffirms the right of crime victims “to full and timely restitution as provided in law,” it does not compel such a result in this case.  Upon review, we cannot conclude that the district court abused its discretion in accepting the agreement.  The record reflects a consideration of all appropriate factors.  The district court reasonably concluded that the difficulty of determining the losses claimed would so prolong and complicate the proceedings that any need for restitution would be outweighed by the burden on the sentencing process.

February 23, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 10, 2010

What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?

In this post earlier today, I noted the peculiar sentencing recommendation coming from federal prosecutors for the stalker/peeper who followed and filmed ESPN reporter Erin Andrews: only a 27-month prison term and exactly $334,808.27 in restitution.  I now see this follow-up story from the New York Daily News headlined, "ESPN's Erin Andrews says 27-month sentence for slimy video voyeur Michael Barrett is not enough."  Here's more:

Prosecutors asked a judge to put perv Michael Barrett behind bars for just a little more than two years in new court documents filed with the U.S. District Court in Los Angeles.

Andrews' lawyer Marshall Grossman said that's inadequate. "She is the victim," he told the Daily News. "My strong sense is that she will argue, as she did before, in favor of a tougher sentence."

Thanks to the federal Crime Victims Rights Act, Andrews has a statutory "right to be reasonably heard" at Barrett's scheduled sentencing on March 8. Though I am sure Andrews will exercise that right by urging the sentencing judge to be tough, I wonder if Andrews will (or should) advocate a precise "tougher sentence" for Barrett.

Of course, it is much easier for Andrews (and for victims in other cases)to advocate generally for a "tough" sentence than to propose a precise sentencing term as an alternative to what prosecutors and defense attorneys are advocating. Nevertheless, perhaps Andrews (and other victims in other cases) would be more effective in achieving a desired outcome when putting forward precise recommendations rather than just general advocacy.

Against this backdrop, I wonder if readers have thoughts about whether Andrews should urge a specific sentencing alternative and what such a specific alternative might be — e.g., many more years in prison? severe conditions of supervised release? shaming in the form of a required posting of YouTube video of Barrett naked in his prison cell? More broadly, I wonder if anyone can report on other cases in which a victim's sentencing advocacy was especially useful (or especially problematic) because the victim did (or did not) get specific.

Related post:

February 10, 2010 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, January 25, 2010

Federal judge rejects plea with long sentencing recommendation because it is not long enough

This New York Times article from late last week, which is headlined "Plea Rejected in Case of Hepatitis Infections," spotlights the role that victims can sometimes play in getting sentencing judges to reject plea deals even when they include significant terms of imprisonment. Here are the details:

Suggesting that 20 years in prison was not enough punishment for the crime, a federal judge on Friday rejected a plea agreement for a former hospital technician and drug user who admitted that she exposed hundreds of patients in her care to hepatitis C.

The judge, Robert E. Blackburn, said the agreement with the former hospital worker, Kristen D. Parker, inordinately restrained his discretion and did not take into account the views of victims, many of whom submitted anguished written statements. It is unusual, legal experts said, for a judge to reject a plea agreement.

Ms. Parker, 27, admitted to the police on videotape that while working at Rose Medical Center in Denver in 2008 and 2009, she stole pain-medication syringes from operating room trays, replacing them at times with needles she had already used to inject herself with heroin.

Seventeen Rose patients have so far been found to have a strain of hepatitis C linked through genetic sequencing to the strain in Ms. Parker’s blood, according to the Colorado Department of Public Health and Environment. Hepatitis C affects liver function and can have lifelong consequences.

Ms. Parker’s lawyer, Gregory C. Graf, said he had not consulted yet with his client but expected she would probably persist with her guilty plea, giving the judge discretion as to her sentence when the case reconvenes next month. Ms. Parker could also change her plea to not guilty and insist on a jury trial, or try to reach another plea agreement with prosecutors.

Judge Blackburn warned Ms. Parker in the brief hearing in Federal District Court, before a courtroom packed with former Rose patients and their families, that if she chose to continue with her guilty plea, the sentence could be stiffer. “I may dispose the case less favorably,” Judge Blackburn said....

A lawyer representing 13 of the Rose hepatitis patients, Hollynd Hoskins, also specifically argued to Judge Blackburn that the United States attorney’s office was not adequately consulting with her clients as required by the [federal Crime] Victims Rights Act.

The United States attorney for Colorado, David M. Gaouette, in a statement on Friday, said, “The victim issues are vitally important in this case and we will continue to work closely with them to ensure their voices are heard.”

January 25, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, January 23, 2010

Roman Polanski's request to be sentenced in abstentia is denied

This Los Angeles Times article provides the latest news in the Roman Polanski sentencing saga.  Here are the basics:

A Los Angeles County Superior Court judge Friday denied Roman Polanski's request to be sentenced in absentia, scuttling the director's latest bid to end his three-decade-old child sex case. Polanski hoped that such a sentencing would allow his lawyers to lay out evidence of judicial misconduct in his case and secure him a sentence of no further time behind bars.

Although a state appeals panel had suggested that Polanski be sentenced in absentia, as the director is facing extradition proceedings in Switzerland, Judge Peter Espinoza said he was not bound by the higher court's suggestion. Espinoza said he would not sentence Polanski as long as he remained a fugitive. "I have made it clear he needs to surrender," Espinoza said. Polanski, 76, is under house arrest at his chalet in Gstaad.

Friday's decision guarantees that the legal saga -- which began in 1977 when a 13-year-old girl accused the director of sexual assault -- will continue for a 33rd year at least.

In his ruling, Espinoza cited the fugitive disentitlement doctrine, a 19th century legal principle that bars a fugitive from calling on the help of a court while he is flouting its authority. The 2nd District Court of Appeal upheld the judge's application of the principle in December, but urged sentencing in absentia or other resolution that would address the misconduct claims.

Polanski's defense quickly vowed to appeal. Attorney Chad Hummel told the judge he was frustrated that the court was more interested in the director's physical presence than investigating the misconduct claims. "What your honor is saying . . . is you're not doing anything unless Mr. Polanski first shows up. And for what? A show," he said....

In his ruling, Espinoza also denied a request by the victim, Samantha Geimer, to order prosecutors to stop extradition proceedings on the grounds that they had not consulted with her before seeking Polanski's return. The judge cited evidence that prosecutors had repeatedly contacted her.

Some recent related Polanski posts (many of which have generated great comment threads):

January 23, 2010 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Thursday, January 21, 2010

Rape victim in Roman Polanski case complaining about prosecutors violating her rights

This new Los Angeles Times article, which is headlined "Victim in Roman Polanski rape case expected to take new legal step on his behalf," reports on the latest fascinating twist in the Roman Polanksi case. Here is how the piece starts:

In the 33 years since she accused Roman Polanski of rape, Samantha Geimer has publicly forgiven the acclaimed director, accused the American justice system of mistreating him and urged a dismissal of his still pending criminal case. On Friday, Geimer is expected to take yet another step on Polanski’s behalf – asking that a Los Angeles court force U.S. authorities to abandon their ongoing attempt to extradite the filmmaker from Switzerland.

In papers served on Polanski’s lawyers Wednesday and expected to be filed in Superior Court this morning, Geimer’s lawyer contends that the L.A. County district attorney’s office violated the state's victims rights statute by not consulting with her prior to making the extradition request.

Now a married mother living in Hawaii, Geimer was 13 when she told authorities Polanski raped and sodomized her during a photo shoot at Jack Nicholson’s house.

Geimer's attorney, Lawrence Silver, wrote that at a Friday hearing he planned to cite Marsy’s Law – a 2008 statute passed by ballot initiative – that specifically guarantees crime victims a number of rights, including the right “to reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding ... the determination whether to extradite the defendant.”

The attorney wrote that in a July letter to the deputy district attorney handling the case, he made clear that Geimer wanted to meet with prosecutors and planned to “exercise every right that she may have under the Victim’s Bill of Rights.”

No one from the district attorney’s office contacted Geimer – whose pro-Polanski feelings were widely known – at that time or in September when the director was arrested in Zurich on a three-decades-old arrest warrant, according to the papers.

January 21, 2010 in Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Wednesday, January 13, 2010

"Woman sentenced to hold sign: 'I battered a police officer'"

51598065 The title of this post is the headline of this article from the Orlando Sentinel, which was sent to me by a helpful reader.  My first instinct is to always prefer these sorts of shaming sentences over terms of incarceration, but I know some others have real problems with this kind of creative sentencing approach:

Alexandra Espinosa-Amaya isn't happy about her sentence. For four hours, the 24-year-old stood outside the Orlando Police Department Tuesday with a homemade sign, apologizing for hitting an officer.  "I battered a police officer. I was wrong. I apologize," she drew on a blue poster board decorated with flowers.

This is her punishment for pushing Sgt. Andrew Brennan on Nov. 29, 2008, while he worked off-duty near the Dragon Room on West Church Street.  "It's humiliating and it doesn't teach my anything," Espinosa-Amaya said outside the courtroom and before she headed to the police station. "But if Officer Brennan is happy and feels a little better, I'll do it."

She agreed to the sign as part of her no contest plea to two misdemeanor charges — simple battery and resisting an officer without violence. Espinosa-Amaya, who is a student at Jacksonville State University in Alabama, also must complete two years' probation, write an apology letter, perform 50 hours of community service and attend an anger-management class.

The sign is an unusual step but the officer wanted some type of unique punishment, said Espinosa-Amaya's attorney, Andrew Chmelir.  And the agreement let her plea to misdemeanors instead of her initial felony charge of battery on a law-enforcement officer, he said.  She is here on a student visa, but today's sentence will not affect her immigration status.

January 13, 2010 in Criminal Sentences Alternatives, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Monday, January 04, 2010

"Prosecutors seek nearly $200k for child porn victim"

The title of this post is the headline of this interesting local article reporting on another case of a child porn victim seeking a significant restitution award from a person who downloaded the wrong dirty picture. Here are excerpts:

Federal prosecutors want Hammond federal Judge Joseph Van Bokkelen to order Portage child pornography convict Mark Ontiveros to pay the victim $193,310.86 in restitution because his computer held images of Vicky before his arrest in summer 2008. Most of that money would be earmarked for her mental health treatment and counseling, according to federal court records.

Ontiveros' attorney, Bryan Truitt, said his client doesn't deny he possessed child pornographic images, a crime that will net the convicted man at least five years in prison. But Truitt said he will argue Ontiveros cannot and should not pay almost $200,000 for the psychological consequences of the girl's sexual exploitation. Ontiveros is not the "proximate cause" of enough harm to warrant that figure, Truitt said....

Prosecutors claim investigators found Ontiveros had collected more than 1,300 images and 18 videos showing children "posing lasciviously" or being raped or molested. Ontiveros admitted to police he viewed child pornography for as many as three hours per day, sometimes when his young son was in the room, according to court records.

At least one ofthe images in Ontiveros' collection is from a series of sexually explicit pictures of the girl referred to in court papers as "Vicky." Nine other children "known to law enforcement" were found in Ontiveros' pictures and videos, but Vicky's lawyer was the only attorney to seek restitution, according to the motion filed by Assistant U.S. Attorney Jill Trumbull-Harris. Vicky's lawyer requested $165,905 for future counseling, $23,205.86 for treatment and "legal-related" costs and $4,200 in attorney fees, Trumbull-Harris wrote....

Vicky will not testify at Ontiveros' sentencing because of "recent severe psychological trauma from attending multiple sentencing hearings" for other offenders, Trumbull-Harris wrote. Federal law mandates a minimum sentence of five years in prison for Ontiveros at sentencing, which is scheduled for Jan. 14. Truitt argues in a sentencing memorandum filed last week that Van Bokkelen should hand Ontiveros the minimum, a term that would fall below advisory sentencing guidelines, to be followed by five years of mental health treatment.

Some related recent federal child porn prosecution and sentencing posts:

January 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Saturday, October 31, 2009

Murder victims' son seeking to advocate against death penalty

A helpful reader forwarded to me this interesting story out of California, which is headlined "Don't execute killer, slain El Cerrito couple's son says."  Here is the start of the piece:

The 20-year-old son of a slain El Cerrito couple is fighting to speak against imposing the death penalty on the uncle who killed his parents, testing for the first time a state law that gave crime victims a greater voice in legal proceedings.

Eric Rogers is scheduled to testify for the prosecution next week during the penalty phase of the murder trial of Edward Wycoff, a 40-year-old Sacramento County truck driver convicted Monday of two counts of first-degree murder for killing his sister and brother-in-law, Paul and Julie Rogers, on Jan. 31, 2006.

While legal precedent limits Eric Rogers to testifying only to the impact the murders have had on his life, Rogers said he wants to tell jurors that he doesn't want Wycoff executed.  His parents were strongly opposed to the death penalty, as is he, he said. "I think revenge would bring me closer to the status of my uncle and further from the status of my parents," Eric Rogers told the Times.  "To be vengeful in their name would be disrespectful."

Rogers hired Berkeley attorney Ted Cassman to argue that he has a right to voice his opposition to capital punishment under Marsy's Law, also known as Proposition 9 or the Victim's Rights and Protection Act of 2008, which voters approved last November.  Marsy's Law gives victims the right to be heard at any legal proceeding.  Beyond Rogers' belief that the death penalty is wrong, such a sentence would cause Rogers more pain by subjecting him to 10 to 20 years of appeals on Wycoff's behalf, Cassman said.

Wycoff prosecutor, Mark Peterson, argues that case law states that jurors need to decide whether a defendant deserves death, not how a death sentence would impact others.

October 31, 2009 in Death Penalty Reforms, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Thursday, October 29, 2009

Effective new opinion discussing restitution in federal child porn possession cases

I posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn.  Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):

It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)

A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation.  See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction.  See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009).  Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.  See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009).  Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount.  See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....

It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm.  The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.

Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images.  The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims.  In fact, there is no mention of Mr. Berk at all....

Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.

Download Berk ruling on CP Restitution

Some related recent federal child porn prosecution and sentencing posts:

UPDATE:  A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:

Download Amended Order on Restitution in Berk

October 29, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (9) | TrackBack

Tuesday, October 27, 2009

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

October 27, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14) | TrackBack

Friday, October 02, 2009

"Victim’s letter lessens attacker’s prison sentence"

The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:

A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.

Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time.  He wasn't bitter, and had compassion for his attackers.  "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...

Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison.  According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.

Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand.  On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:

I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony.  She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time.  Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried.  Instead, she is a footnote in all the commentary, on both sides.  No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.

October 2, 2009 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Wednesday, August 26, 2009

Interesting debate over judge's questions to rape victim at sentencing

Thanks to Scott at Grits for Breakfast, I have learned of an interesting debate over how a Texas state judge at sentencing questioned a rape victim.  Here are some links to the story and reactions:

These stories raise broader questions about the procedures that are used and should be used when victims are involved in the sentencing process.  Because nearly all sentencing proceedings take place in front of the sentencing judge, rarely are the formalities of the adversarial system followed (and, of course, many constitutional and statutory rules applicable at trial do not even apply at sentencing).  But, as this story highlights, victims may be surprised and troubled when judges get directly involved in asking probing and challenging questions concerning the nature of the offense.

August 26, 2009 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Thursday, August 06, 2009

NBA's crooked ref results in interesting restitution ruling from Second Circuit

The Second Circuit today has an interesting ruling on restitution awards in US v. Battista, No. 08-3750 (2d Cir. Aug. 6, 2009) (available here).  Here is how it starts:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association (“NBA”) gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution.  The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses.  Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.

August 6, 2009 in Criminal Sentences Alternatives, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, July 14, 2009

Intriguing Sixth Circuit ruling on victim access to PSR

A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private.  Here is how the interesting opinion gets started:

This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants.  Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs).  The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him.  The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages.  Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them.  The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context.  But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.

July 14, 2009 in Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

Tuesday, June 16, 2009

Bernie Madoff's many victims vent in letters to sentencing judge

As detailed in this New York Times article, headlined "Fraud Victims Want Maximum for Madoff," some victim of Bernie Madoff's ponzi scheme have had a chance to tell his sentencing judge what they think ought to happen to their least-favorite white-collar criminal.  Here are a few details:

They are widows, retired schoolteachers, electrical contractors and Korean War veterans. Most had a strong message for the judge in charge of sentencing Bernard L. Madoff: impose the maximum sentence allowable by law.

In more than 100 letters and e-mail messages to Judge Denny Chin, victims of Mr. Madoff’s $65 billion Ponzi scheme described how their lives had been forever changed by the actions of a man they had trusted.

The letters, sent to the Federal District Court in Manhattan and released to the public on Monday, come ahead of Mr. Madoff’s sentencing on June 29.  Eight of the victims, including one who has known Mr. Madoff personally for more than 20 years, asked Judge Chin for permission to speak at the sentencing.

More than two-thirds of the victims who wrote to the court were retirees or children of retirees who invested with Mr. Madoff more than a decade ago. Many said they had been forced to move in with relatives or look for jobs.  Several letters expressed dismay with the Securities and Exchange Commission for failing to discover the fraud after being tipped off numerous times.

Many were brimming with anger directed at Mr. Madoff.  “Sentence this monster named Madoff to the most severe punishment within your abilities,” wrote Randy Baird, a California lawyer.  “We are too old to make up what we lost. We have to start over.”...

Some took issue with the portrayal of the fraud’s victims in the news media as being among the wealthy and privileged.  “Many Madoff victims are elderly individuals or retirees who were saving for the future and they had the misfortune to believe in a powerful Wall Street insider who was repeatedly investigated and given a clean bill of health,” wrote Emma De Vito, 81, a widow from Chalfont, Pa., who lost her entire life savings to Mr. Madoff.

June 16, 2009 in Victims' Rights At Sentencing | Permalink | Comments (8) | TrackBack

Friday, May 15, 2009

Scholarly concerns about the CVRA

Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act.  But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration.  Here is the abstract:

The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution.  Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants.  Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case.  Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion.  Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant.  An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.

May 15, 2009 in Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, May 06, 2009

Another example of victim calling for a reduced sentence

Regular readers know I like to spotlight cases in which a crime victim has been a voice for sentencing leniency rather than toughness.  This new article from the Philadelphia Inquirer, headlined "Victim's forgiveness keeps embezzler out of prison," provides another example.  Here are the deatils from the start of the article:

Elizabeth "Betty" Greenawalt embezzled more than $900,000 from her long-time employer and neighbor, robbing him of money that he could have taken into his retirement.  Ralph Bucci went to Delaware County Court yesterday for Greenawalt's sentencing. Instead of seeking revenge, he offered forgiveness. "I do not seek a prison sentence on my behalf," Bucci told Judge James F. Nilon Jr.

Joan Bucci, his wife, called it a difficult day for her.  She mentioned Greenawalt's gambling addiction and said Greenawalt's actions had hurt the family emotionally and financially.  The Buccis' two daughters and son also testified that they had no desire to see Greenawalt go to prison, and that they also forgave her.

Greenawalt, who turned 66 yesterday, is in remission from Stage IV ovarian cancer.  She was sentenced to nine months of house arrest and more than 19 years of probation, and ordered to pay approximately $636,000 in restitution and serve 300 hours of community service.

May 6, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, April 28, 2009

"Is Crime Victims Rights Law Being Misused in Environmental Cases?"

09_ncvrw_icon The question in the title of this post is the headline of this new piece in The National Law Journal.  Here is how the effective piece begins:

A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.

It is interesting and notable that this question is being asked right in the middle of National Crime Victims’ Rights Week.  As detailed in this new press release from the White House, President Obama has called upon all Americans "to observe this week by participating in events that raise awareness of victims' rights and services and by volunteering to serve victims in their time of need."  I suppose that this NLJ article in some ways satisfies this call.

April 28, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Saturday, March 07, 2009

A victim's perspective on a possible plea deal for Bernie Madoff

This ABC News article provide an effective victim-centered perspective on the developing new that Bernie Madoff may be nearing a plea deal in his prosecution for his record-setting frauds.  The piece is headlined " Calling All Victims: Madoff Expected to Plead Guilty; Criminal Case of the $50 Billion Fraudster Nearing Conclusion," and here are some notable excerpts:

In the government's clearest statement yet that a deal in the criminal case of Bernard Madoff is close to being made, a victims' rights motion was filed Friday evening by the U.S. attorney in the case that indicates Madoff will appear next Thursday in a plea proceeding.

U.S. District Court Judge Denny Chin signed an order granting a request that the thousands of victims of the alleged Ponzi scheme will receive online notification of the court proceedings. They will have to periodically check a special web site set up for the criminal case proceedings.

Any victim who wishes to be heard in Thursday's proceeding will need to notify the government by Wednesday March 11th at 10:00 a.m. The internet address for victims to contact is: usanys.madoff@usdoj.gov....

It was reveleaed Friday that federal prosecutors have apparently reached a plea deal with the accused con man, in which he will admit to his role in the biggest financial crime in American history. The deal does not specify how much time Madoff would spend in prison, nor does it exclude the prosecution of Madoff's family or former associates, lawyers familiar with case said.

One former federal prosecutor says he doubts the deal will go easy on Madoff and that the disgraced financier will be spending a long time behind bars. "I doubt very seriously whether there would be any concession by the government as to jail time or diminished jail time for Mr. Madoff," said Sean O'Shea. "Given the sentencing guidelines in a fraud of this type, I think you're looking at a man who is 70 years old, I think you're looking at the rest of his natural life."...

Madoff's investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.

"It's not enough" for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. "That's what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children." Von Anhalt also wants to see Madoff's wife, Ruth, and his sons arrested and put in jail. "What nerve she has, to say that she wants to keep all that money. That's our money! Screw her!"

For more details on the possible plea deal, Mark Hamblett at the New York Law Journal has this article, headlined "Madoff Waives Indictment, Set to Plead Guilty."

March 7, 2009 in Celebrity sentencings, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Tuesday, February 24, 2009

New CVRA circuit filing in big environmental case

Anyone interested in crime victims rights and the scope and application of the federal Crime Victims' Rights Act will want to keep a close eye on the high-profile environmental case involving the the criminal trial of W.R. Grace in Montana.  As detailed in this post, titled "Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution," former federal judge Paul Cassell is taking to the Ninth Circuit this mandamus petition arguing that the district court unduly limited the reach of who qualifies as a victim under the CVRA.

As regular readers know, the the Crime Victims' Rights Act calls upon the court of appeals to "take up and decide such application forthwith within 72 hours after the petition has been filed."  In other words, it would appear that the Ninth Circuit has to rule on this matter before the end of this week

February 24, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Thursday, February 05, 2009

Notable AWA and CVRA rulings

Thanks to the fine bloggers at The Volokh Conspiracy, I can cover two interesting rulings under two interesting federal criminal statutes by links to their posts:

February 5, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Friday, December 19, 2008

Eleventh Circuit grants mandamus in CVRA case

The Eleventh Circuit issued late today an important CVRA ruling with a short opinion in In Re: Janice W. Stewart And Other Borrower-Crime Victims, No. 08-16753-G (11th Cir. Dec. 19, 2008) (available here).  Here is how the opinion starts:

The Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime. The CVRA requires the Government to “make [its] best efforts to see” that the court (in which the prosecution is pending) permits the victim to appear and be heard.  If the court refuses to allow the victim to appear, the victim may move the United States Court of Appeals for a writ of mandamus.

Several persons claiming to be victims of the crime charged in United States v. Coon, No. 08-CR-441-T-17MAP (M.D. Fla.), moved the magistrate judge – as he was entertaining, and conditionally accepting, the defendant Phillip Coon’s guilty plea pursuant to an information and a plea agreement – for leave to appear in the case and to be heard.  The magistrate judge refused to recognize the movants as victims, and denied their motion.  The district court subsequently adhered to the magistrate judge’s ruling. The movants (“petitioners”) now petition this court for a writ of mandamus.  We grant the writ.

UPDATE:  Paul Cassell, who helped represent the petitioners in this case, discusses the Eleventh Circuit's ruling in this post at The Volokh Conspiracy.  Commentors over there spotlight some reasonable concerns about broad application of the CVRA in economic crime settings.

December 19, 2008 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, December 03, 2008

Another notable CVRA mandamus petition to watch

I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:

Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process.  The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him.  The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.

The lengthy petition is available at this link.  Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008."  I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).

I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision.  By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week. 

Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit).  But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.

December 3, 2008 in Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Sunday, November 30, 2008

How big is the risk that victim videos are more prejudicial than probative?

This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:

Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors.  Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993.  The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes.  With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos. 

Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief).  I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.

November 30, 2008 in Victims' Rights At Sentencing | Permalink | Comments (16) | TrackBack

Tuesday, November 11, 2008

An example of homicide victim's family asking for sentencing leniency

The Supreme Court's disinclination to consider a pair of victim impact capital cases (basics here) has already prompted some commentors to complain about victims having a role in the criminal justice system.  But this local story from Utah provides yet another example of how victims can often be a voice for sentencing leniency even when the defendant is facing homicide charges:

Driving while talking on a cell phone is a dangerous mix for one mom. "Oh it breaks my heart,” said Linda Mulkey. “It’s such a dangerous habit."

Mulkey knows first hand about the consequences of a distracted driver.  She lost her only daughter in a car accident. 18 months ago, Lauren Mulkey just graduated from East High.  She died when Theodore Jorgensen ran a red light while fidgeting with his cell phone. "You don't get over losing a child,” said Mulkey. “You just learn to deal with the pain. It hurts everyday. My whole future is wiped out."

But Monday in court, Mulkey had the courage to forgive Jorgensen.  The 20-year old pleaded guilty to negligent homicide and faced sentencing.  But Mulkey asked the judge that she didn’t want him serving at prison time.  “It just didn’t make any sense,” she said.  Instead, she asked that Jorgensen be required to do community service.

In court, Jorgensen apologized to Mulkey. He turned to face her and said "I'm sorry for the pain I've caused."

“It took me a long time to reach this point,” she said. “But the more I saw him in court I realized he was a young scared man who had loving parents and I didn’t see any point in him sitting in jail.”

The judge agreed placing Jorgensen on probation and ordering him to do 500 hours of community service. “I’m hoping we can make joint appearances at schools,” she said. “His story and my story would make powerful messages to students.”

Some related posts:

November 11, 2008 in Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Saturday, November 08, 2008

Worth reading from the Duke Law Journal

Thanks to the law review TOCs at Concurring Opinions, I saw that the Duke Law Journal has a new article and two new notes worth checking out:

November 8, 2008 in Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Saturday, August 30, 2008

Cert petition on video victim impact evidence

This new post at SCOTUSblog discusses a very interesting case coming to the Supreme Court concerning victim impact evidence.  Here is the start of the post:

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

August 30, 2008 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Thursday, August 14, 2008

Do victims care more about the sentencing process or sentencing results?

I always find interesting the debate over victims' rights at sentencing, and this local story from Illinois highlights that some crime victims may care a lot more about speaking out than about sentencing outcomes:

As the court proceedings against former police officer Jeff Pelo ended Tuesday, the women he was convicted of assaulting and stalking had the last word in statements expressing the impact the crimes have had on their lives. But victims expressed frustration with the limitations placed on their remarks during Tuesday’s sentencing hearing in which Pelo received 440 years in prison.

A woman who was stalked for more than a year criticized Pelo’s defense lawyer, Michael Rosenblat, for asking that portions of victims’ statement be removed.  “I am so outraged Pelo and his lawyer chose to rob the victims of our opportunity to say our peace in court that I decided to make my statement public. I refuse to let him silence me,” said Jonelle Galuska, the stalking victim.

All but one of the victims in the Pelo case have asked the news media to use their names....

Associate Judge Robert Freitag explained in his ruling Tuesday that victim impact statements should contain information about how the offense has affected the victim. Remarks about how the community was victimized by Pelo and opinions on sentencing laws were among the things Freitag barred from the hearing.

Some related posts:

August 14, 2008 in Victims' Rights At Sentencing | Permalink | Comments (18) | TrackBack

Tuesday, July 08, 2008

Examining the intersection of victim's rights and juve justice

I just saw this interesting looking piece on SSRN that combines two topics of interest to most sentencing fans.  The piece by Kristin Henning is titled, "What's Wrong with Victims' Rights in Juvenile Court?: Retributive v. Rehabilitative Systems of Justice," and here is the abstract:

While scholars have written extensively about the victim's rights movement in capital and criminal cases, there has been very little discussion about the intersection of victim's rights and the juvenile justice system.  Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court's priorities and altered the way judges think about young offenders.  While judges were once primarily concerned with the best interests of the delinquent child, victim's rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the victim and restoration of communities impacted by crime.

In this article, I contend that victim impact statements move the juvenile court too far away from its original mission and ignore the child's often diminished culpability in delinquent behavior.  I also argue that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime.  To better serve the needs of the victim and the offender, I propose that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child's long-term treatment plan. Interactive victim awareness programs, such as victim-offender mediation and victim impact panels that take place after disposition, allow victims to express pain and fear to the offender, foster greater empathy and remorse from the child, and encourage forgiveness and reconciliation by the victim.  Delaying victim impact statements until after the child's disposition also preserves the child's due process rights at sentencing and allows the court to focus on the child's need for rehabilitation.

July 8, 2008 in Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, July 01, 2008

SCOTUS gets first look at CVRA

As detailed in this great SCOTUSblog post, some of the fascinating issues that surround the federal Crime Victims' Rights Act (CVRA) have now come before the Supreme Court in the form of an application for a stay.  Here is the start of the SCOTUSblog coverage:

In the first attempt to get the Supreme Court to clarify the rights of crime victims under a 2004 federal law, lawyers for 12 victims of an explosion three years ago at an oil refinery in Texas have asked the Supreme Court to delay a federal judge’s action on a plea agreement that would settle federal criminal charges against a large oil company. The victims contend that the plea deal is too lenient, and that it was worked out without any input from the victims — a claimed violation of the Crime Victims’ Rights Act.

At this stage, the victims are asking the Court to block a Fifth Circuit Court ruling that limits their right to challenge denials of rights under that Act; their lawyers are preparing an appeal to the Supreme Court on that point, and want a delay until that is decided.   The application for a stay (Dean, et al., v. U.S. District Court, 08A3) can be downloaded here.  BP Products North America Inc. filed an opposition to the stay request, arguing that the 2004 law does not allow for stays.

If a stay is not issued, the victims’ lawyers argued, the plea deal could be ratified by a federal judge, forever scuttling their rights to have taken part in discussions of what such a bargain should include, before it takes effect.

As I have highlighted in a number of prior posts, the CVRA is a really interesting (and really unclear) bit of federal legislation.  The nature of the claim and the nature of the case here leave me entirely unsure what the Supreme Court will do, though I am sure it will have to confront a number of CVRA issues in the years ahead.

Some related posts:

UPDATE:  As detailed here at SCOTUSblog, the Supreme Court turned down the stay request of victims in this case.  It would seem that the Justices do not entirely agree with Senator John McCain's recent assertion in his crime speech that "[i]n all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all the rights of victims."  No wonder Senator McCain has taken to judge-bashing.

July 1, 2008 in Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, June 04, 2008

A telling example of a victim prompting a lighter sentence

I have often asserted that allowing victims to have a say at sentencing might sometimes prompt a more away from harsh imprisonment terms.  And this story from Tennessee showcases this reality:

A man guilty of vehicular homicide will not spend any time in prison following an unusual act of forgiveness in open court. “I do forgive you,” Jana Bice tearfully told Jeremiah Mann, the person who killed her father when his SUV struck Dwight Brooks’ car in March 2004 in Chattanooga. “My father was a wonderful man,” Ms. Bice continued during Mr. Mann’s sentencing hearing Monday. “But I think (Mr. Mann) is remorseful. I don’t think my dad would want him to sit in prison.”

Mr. Mann, 28, instead received a 10-year suspended sentence with the stipulation that he spend the next 30 weekends at the Silverdale Detention Center. He also will lose his driver’s license for three years, is not allowed to drink alcohol and can never refuse a breath-alcohol test. “Make sure you do all of those things,” Hamilton County Judge Rebecca Stern cautioned the defendant. “You’re looking at a long sentence if you don’t.”

Mr. Mann could have been sent to prison for eight to 12 years had Judge Stern chosen to impose her own sentence rather than consider Ms. Bice’s suggestion in court that “he deserves a chance” to get his life together. The testimony prompted Judge Stern to allow the prosecution and defense to hammer out their own sentencing guidelines. “We’ll try to come up with something that works for everybody,” Judge Stern said.

Mr. Mann, who said he always has sought to make amends for his actions, later stood outside the courtroom hugging the victim’s family members. “It’s an amazing day,” he said. Mr. Mann’s mother, Nellie Mann, thanked the Bice family for giving her son a second chance.

Assistant District Attorney Jay Woods said he, too, believes Mr. Mann’s remorse is sincere. “That’s something I don’t see very often,” Mr. Woods said.

Some related posts:

June 4, 2008 in Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Thursday, May 08, 2008

Great coverage of Fifth Circuit CVRA ruling in BP case

The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here).  Here are excerpts from the article:

A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table.  The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.

"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....

In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more.  The plea agreement must be accepted by a judge to be final and that has not yet happened....

The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004.  They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....

Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act.  "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....

The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said.  "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."

Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals.  In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.

May 8, 2008 in Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, May 07, 2008

Notable CVRA ruling from Fifth Circuit in BP case

Though apparently not yet posted on the Fifth Circuit website, a friendly reader sent me a copy of the Circuit notable decision today concerning the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (available for download below). Here is the start of the opinion:

In the related criminal proceeding, twelve of the victims asked the district court to reject the plea agreement, alleging violations of the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. The district court denied the request. See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008).  The victims petition for writ of mandamus with the prayer that “[t]he decision of the district court should be reversed and the case remanded with instructions that the plea agreement [not be] accepted and the parties are permitted to proceed as they determine --- so long as it is in a way that respects crime victims’ rights.” We find a statutory violation but, for reasons we explain, we deny relief.

Download cvra_dean_opinion_from_5th_circuit.pdf

There is a lot packed into only eight pages in Dean, and thus I may need some times and future posts to comments on what this ruling could mean (and whether it might be SCOTUS material).

May 7, 2008 in Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Monday, May 05, 2008

Second Circuit rejects sundry challenges to CVRA

The Second Circuit this morning issues an intriguing little opinion in USA v. Eberhard, No. 05-3431 (2d Cir. May 5, 2008) (available here), which rejects a number of constitutional challenges to the Crime Victims Rights Act.  Here is one sentence that highlights the to-the-point character of the opinion in Eberhard: "A law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause."

May 5, 2008 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Victim rights amendments on Oregon ballot

This local AP article spotlights that criminal justice fans should be interested in the Oregon primary for reasons beyond the one that will be covered by most of the media:

Crime victims and their families could play a bigger role in trials and sentencing under two statewide measures on the May 20 ballot.

Measures 51 and 52 essentially make the same changes to two different sections of the Oregon Constitution, including the crime victims' right to be present at key stages in a case and to be consulted about plea negotiations in some cases and to be heard at sentencing.  Many of those rights are already spelled out in Oregon law but lack enforcement provisions.  The measures would also grant the right of appeal for victims who claim their rights are denied.

Some related posts:

May 5, 2008 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Friday, February 01, 2008

Fascinating Eighth Circuit case on restitution

A somewhat amusing set of facts leads to an Eighth Circuit opinion today addressing a very interesting set of legal issues in US v. Chalupnik, No. 07-1355P (8th Cir. Feb. 1, 2008) (available here). Here is how the opinion starts:

BMG Columbia House (“BMG”) sells CDs and DVDs by mail. Many BMG discs prove to be undeliverable. During the time in question, BMG arranged with the United States Postal Service (“USPS”) to gather and discard undeliverable discs, as it was less costly for BMG to produce replacement discs than to pay for the return and restocking of undeliverable discs. James Chalupnik, a janitorial supervisor at the downtown post office in Fargo, North Dakota, took several thousand undeliverable CDs and DVDs from the post office trash and sold them to used record stores. Initially charged with felony mail theft, Chalupnik pleaded guilty to misdemeanor copyright infringement in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(3). The district court sentenced Chalupnik to two years probation and ordered him to pay -2- BMG restitution in an amount equal to his documented sales proceeds, $78,818. Chalupnik appeals the restitution award. We conclude that the government failed to prove the amount of loss to BMG proximately caused by Chalupnik’s offense. Accordingly, we vacate the restitution award and remand for resentencing.

February 1, 2008 in Criminal Sentences Alternatives, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Sunday, January 27, 2008

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

January 27, 2008 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack