Wednesday, December 01, 2010

"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"

The title of this post is the title of this interesting book chapter by Professor Justin Holbrook. Here is the abstract:

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court.  For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.

First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat.  Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators.  Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma.  This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

December 1, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Saturday, November 13, 2010

"An unusual sentence aims to make a killer remember his victim"

The title of this post is the headline of this interesting and moving article from the St. Petersburg Times.  Here are excerpts:

The call came at 8 p.m.  A 19-year-old driving a Honda Civic had lost control and gone off the road.  He over-corrected, the state trooper said, and smashed into Thomas [Tower] Jr.'s car.  The impact ejected Thomas Jr., who fell into a field.

"By the time we got there, he was gone," [his father] said.  Thomas Jr. was 28.  The other driver, Andrew Gaudioso, was airlifted to a hospital where he spent four months in a coma.  "We waited," Towers said.  "But that kid was never charged."

Six months later, after Gaudioso was released from the hospital, Towers drove to the highway patrol station and demanded to see the wreck report. Gaudioso hadn't been drinking, the report said.  But a blood test showed drugs in his system.

In an interview, prosecutor Sara Jane Olson wouldn't say what the drugs were, but Towers said he was told one was marijuana.  "This kid got high and drove and killed my son," Towers said.  "My son, who protected our freedom and fought for our country, died a mile from my home."

In April 2009, officers charged Gaudioso with vehicular homicide.  His trial was supposed to start this month.  But his lawyer, Laura Hargrove, asked to have the case dismissed. "There was a huge problem with the way they calculated his speed," she said.

Prosecutor Olson could have asked for an 8-year prison sentence for Gaudioso, but that wasn't what Towers wanted.  "I didn't want him sitting there in the air-conditioning, watching TV on the taxpayers' dollars.  And I sure didn't want to risk him going free."

He wanted to hear Gaudioso say he was sorry for all the pain he had caused. "I want him to apologize to my family — every week," Towers remembers telling the assistant state attorney. "I want him to remember, for the rest of his life, that he killed my son."

Gaudioso did not respond to interview requests for this story, but his lawyer said he was happy with the plea agreement.  "He didn't want to go to prison."  The defense attorney proposed postcards instead.  One a week, for 15 years.  That's 780 postcards.

"The only way I could keep my client out of prison was to come up with something creative," Hargrove said.  "We didn't mandate what he had to say.  Only that he has to send the postcards."

On Oct. 14, Lake County Circuit Judge G. Richard Singeltary signed off on the unusual plea agreement. He sentenced Gaudioso, 22, to 15 years of drug offender probation, during which he can't drink or use drugs.  He also revoked his driver's license for five years and ordered him to pay $815 in fines.

And Gaudioso has to "mail a postcard to the victim's family via probation every week while on probation."  If Gaudioso doesn't send one, he will serve the rest of his 15 years behind bars.

Radio stations and wire services across the country carried news of the sentence. Internet users discussed it on blogs from "simplejustice" to "Harrypottering."  Everyone seemed surprised the victim's family would agree to let his killer go free.  To Towers, the best punishment is to make the killer pay penance. "I need to know that he cares that he killed my kid."

November 13, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, November 04, 2010

"Memory and Punishment"

The title of this post is the title of this interesting looking new piece from O. Carter Snead that is now available via SSRN. Here is the abstract:

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law.  Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role.  Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.

For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community.  Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment.  This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.

November 4, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, November 03, 2010

Ninth Circuit adopts invented exception to victims' right to restitution

A helpful reader altered me to an interesting little unanimous panel opinion from the Ninth Circuit today in US v. Lazarenko, No. 08-10185 (9th Cir. Nov. 3, 2010) (available here).  Here is how the opinion starts:

Defendant Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine, was convicted of money laundering and conspiracy to commit money laundering.  See United States v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009).  In this appeal, Lazarenko challenges the district court’s order of restitution of more than $19 million to his co-conspirator, Peter Kiritchenko.  We hold that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution.  Because no exceptional circumstances exist here, we reverse and vacate the order of restitution.

This Lazarenko ruling acknowledges that it is making up law here when the plain text clearly does not exclude certain types of victims from the right to obtain restitution:

[Applicable victim restitution statutes set forth a] definition [that] looks only to whether the person was harmed; it does not consider whether the person also was a co-conspirator. Under the plain text of the MVRA and VWPA, therefore, co-conspirators have just as much right to restitution as do innocent victims.

But courts have recognized that Congress could not have intended that result.  Otherwise, the federal courts would be involved in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators may have cheated their comrades. Indeed, the Second Circuit has held that an order of restitution from one co-conspirator to another was “an error so fundamental and so adversely reflecting on the public reputation of the judicial proceedings that we may, and do, deal with it sua sponte.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); see also United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (suggesting that it would be improper to consider a participant to a crime as a victim of the crime for purposes of restitution).  In other words, because a literal application of the plain text leads to absurd results, the plain text does not control.

We agree with the Second Circuit that, as a general rule, an order of restitution to a co-conspirator is a “fundamental” error that “adversely reflect[s] on the public reputation of the judicial proceedings.” Reifler, 446 F.3d at 127. Indeed, we suggested the same in Weir, 861 F.2d at 546. Only in exceptional circumstances would Congress have intended that a coconspirator to a crime be entitled to restitution.

I wonder if all committed textualists (including some on the Supreme Court), as well as all those committed to broad interpretations of victim rights, fully concur with the Ninth Circuit's decision in Lazarenko to invent an exception (with its own exception circumstances exception) to the plain term of the federal statutes providing for victim restitution. 

To me, it is not obviously absurd that a federal offender's punishment should include a requirement of restitution to all victims financially harmed even if those victims are co-consiprators.  Indeed, the rule adoped here would seem to give major fraudsters a tangible incentive to seek to co-opt their biggest victims into their frauds if/when they start fearing apprehension so as to reduce the risk of owing those victims restitution if/when convicted.

November 3, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, October 22, 2010

"Mini-Madoff" gets mini-sentence that should still be a functional life sentence

As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday.  Here are the basic details:

Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.

Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.

"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois.  "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."

Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment.  But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...

Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said.  "I blame only myself for my acts."

His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.

I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence.  But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.

October 22, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Sunday, October 17, 2010

"A Distributive Theory of Criminal Law"

The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review.  Here is the abstract:

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism.  The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer.  At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance.  This Article asserts that there is in fact a distributive logic to the changes in current criminal law.  The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim.  Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.

This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms.  Understanding much of modern criminal law as distribution highlights an interesting political contradiction.  For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another.  But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims.  Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

October 17, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 23, 2010

Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement

A helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings.  The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines.  Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing.  Because we find that the District Court did not abuse its discretion, his petition is DENIED.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.”  Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.”  Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office.  Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.

Download Zackey ORDER_3rd_CIr_

The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case."  In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom.  But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

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

Tuesday, September 21, 2010

"State Crime Victim Recoveries"

The title of this post is the title of this interesting-looking new paper available via SSRN on state victim restitution policies and practicalities.  Here is the abstract:

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously.  These avenues often, but not always, have constitutional as well as statutory foundations.

Unfortunately state crime victims often go without recovery.  Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing.  Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases.  Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.

September 21, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Monday, September 20, 2010

Plea deal lets Virginia quadruple-murderer escape death penalty (with approval of victims' relatives)

This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:

The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison.  Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.

McCroskey, who could have faced the death penalty, was sentenced to life in prison.  He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.

Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings.  McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.

Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty.  "What it really means is death in prison," Ennis said after the hearing.  "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."

Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible.  "He's left families without their loved ones," Bowen said. "There are four people dead here.  He's not proud of that."  He said McCroskey is remorseful and has contemplated the severity of what he did.

A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure."  They also thanked police and everyone who supported them.  "We have endured a tragedy of unspeakable proportion," the statement reads.  "We are relieved that justice has been done.  While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."

In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case.  And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.

The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week.  Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here).  Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.

September 20, 2010 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, September 16, 2010

Restitution terms debated in another federal child porn downloading sentencing

As detailed in this new article from the Kansas City Star, which is headlined "Long prison sentence, restitution sought in child porn case," federal district court around the country continue to confront the challenging and unsettled issue of whether and how they can and should order restitution as part of a federal sentence for downloading certain child pornography pictures. Here are the particulars:

The nightmare never ends for the young woman known around the world as “Vicky.”  Every day, new letters arrive in her mailbox informing her that another man has been arrested for having on his computer pornographic images of her being raped as a child.

One of those men was in a Kansas City courtroom Wednesday to face sentencing for receiving and possessing thousands of images of child pornography, including a nearly two-hour video of Vicky being abused as a 10-year-old.

William Harold Laursen, a former music teacher at two area schools, last year pleaded guilty to the charges. On Wednesday, federal prosecutors sought not only a lengthy prison sentence but an order for Laursen to pay restitution to Vicky.

U.S. District Judge Howard Sachs took the matter under advisement after a morning of testimony, including how the videos of Vicky’s abuse at the hands of her father are some of the most widely disseminated child pornography images on the Internet.

 “There’s no end to it,” said Randall Green, a psychologist who has examined the now-20-year-old woman in the Vicky series of images.  “She feels she is serving a life sentence.”  Not only must she deal with the trauma of being sexually assaulted by her father, but she must live with the knowledge that thousands of others have seen her being abused, Green said.  She suffers from myriad psychological problems that will require a lifetime of therapy, and she continually is fearful that people she encounters may recognize her from the videos, he said.

Though she lives in another state and did not attend Wednesday’s hearing, prosecutors have provided her written statement to the court.  “Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them,” she said.  “It terrifies me that people enjoy viewing things like this.”...

Seeking restitution for child pornography victims from those who download and disseminate their images is relatively new.  To date, various courts have ordered about $44,000 in restitution to Vicky, according to a statement from her attorney.

Vicky is not her real name, but some downloaders of her childhood images have learned her real name and have attempted to contact her, Green said. One even created a video called “Where’s Vicky Now?” and combined current images of her with the pornographic images from her childhood, he said.

Laursen, 57, of Kansas City, formerly taught at Kansas City Academy and at CS-1 School in Prairie Village. He did not testify during Wednesday’s hearing in U.S. District Court in Kansas City. His attorney, Tom Bath, pointed out in his questioning of witnesses that there were no allegations or evidence that Laursen ever touched a child inappropriately.

I am deeply saddened by the fact that "Vicky" still suffers greatly as a result of her sexual abuse and the continued circulation of images of her victimization, and I would readily credit the psychologists assertion that "there’s no end" to the harms that "Vicky" continues to endure. 

But this reality makes the legal debate over restitution in child porn downloading cases even more challenging.  If there is no end to the harms that Vicky is suffering, should there likewise be no end (either temporally or monetarily) to her ability to collect restitution award from any and every defendant who has ever downloaded her pictures?

Some related recent federal child porn restitution posts:

September 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Friday, August 27, 2010

Debate in Hawaii over how tough to get on drunk drivers who kill

This local story from our 50th state, which is headlined "Prosecutors, defense attorneys spar over sentencing of deadly drivers," highlights that sentencing judges are sometimes inclined to give a break to drunk drivers even when they kill. Here are excerpts:

Honolulu prosecutors on Wednesday unsuccessfully sought a 15-year prison term for the driver responsible for a deadly crash in Mokuleia four years ago. It was the latest in a string of sentencing disappointments for them and the families of crash victims.

We've seen it many times now -- a tearful plea by a person whose loved one was killed in a crash involving drunken driving and/or excessive speeding. "I really wish you would think really hard on the sentence," Joyce Somera, victim's sister, told the judge at a sentencing Tuesday.

Often, a family's loss is compounded by a seemingly lenient sentence for the driver responsible. Keanan Tantog killed a person and injured another, and received probation and a one-year jail term.

Tyler Duarte took two lives, and was sentenced to probation and 18 months in jail.  Billy Lamug -- who wasn't intoxicated but was excessively speeding -- killed two people and injured a third.  He was sentenced to probation and community service.

"Each one of these families have lost somebody that they've loved forever," Douglas Chin, acting city prosecutor, said. "What's too bad is it seems like the court is more often taking into consideration what's happening for the defendant."

A judge sitting on a standard second-degree murder case has no discretion.  It's a mandatory life sentence for that intentional killing. But in a vehicular homicide, whether negligent or reckless, a judge has discretion and must consider several factors, including the defendant's criminal history.  If there's no prior record, the driver will likely sidestep the maximum prison term -- even if alcohol was involved in the deadly crash.

"In these cases, a judge is faced with a situation where a good person is dead, but a good person's life now also hangs in the balance," Victor Bakke, defense attorney, said. "The judge's job is not revenge."

"The argument that they've never done it before, it's never happened, doesn't hold much water with me because the fact is they've done it now," Sen. Sam Slom, Senate Judiciary Committee member, said. Slom says a decade ago, very few of these drivers went to jail at all.  But since then, the laws have become tougher.  In light of the recent sentences being handed down, he says the committee should revisit the issue next session.

August 27, 2010 in Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, August 17, 2010

"3rd trip to Texas death chamber for grieving dad"

The title of this post is the headline of this notable local article from Texas providing a notable perspective on one victim's view of the administration of the death penalty in a high-profile case:

Randy Ertman knows the road to the Texas death chamber too well. He’s set to make the trip again, to witness for the third time the execution of one of the gang members responsible for the rape and murder of his teenage daughter and her schoolmate.

This time, it will be the lethal injection on Tuesday of Peter Anthony Cantu, the leader of the five young men who were sentenced to die for the June 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena.

It’s not lost on him that Cantu has lived in prison longer than Jennifer and Elizabeth were alive. “He should have been hung outside the courthouse,” Ertman said in an interview with The Associated Press. “I don’t mean this in a gruesome way, but if they want to make the death penalty a deterrent, up in front of (Houston) City Hall, they’ve got all these beautiful trees. They should have hung them. If they hung all five of them, that would be a deterrent.”...

The case horrified Houston. Nearly two decades after friends and relatives frantically distributed flyers offering a $10,000 reward for help finding the teenagers who failed to return home from a summer pool party, prosecutor Donna Goode still has one in her office. “Two beautiful young girls,” Goode says. “I think about them.”

Their battered and decomposing bodies, left to mummify in a wooded field in the relentless heat of Houston’s summer, were found four days after they disappeared. “They become everybody’s daughter,” recalled Don Smyth, a retired Harris County assistant district attorney who had helped prosecute Cantu. “Parents always worry about their kids, especially their daughters.”

Of the six people convicted, five were sentenced to death. Two who were 17 when the girls were killed were spared the death penalty when the U.S. Supreme Court barred execution of people who were under 18 when they committed their crimes. The person not sentenced to death, 14 at the time, got a 40-year sentence.

Two of Cantu’s companions in the gang they dubbed the Black and White preceded him to the death chamber. Ertman made the drive here four years ago for the first execution. Derrick O’Brien, belted to a gurney, looked through the death chamber window at Ertman and other relatives of the girls and called his involvement “the worst mistake that I ever made in my whole life.” Seven minutes later, O’Brien was dead.

In August 2008, Ertman again climbed the steps to the red-bricked Huntsville Unit prison. Mexican-born Jose Medellin, 33, with needles in his arms, also apologized. Nine minutes later, he was dead.

Ertman rejected an invitation from Cantu’s lawyer to come to his office and read a letter of apology from Cantu. “It’s a little late,” Ertman said. “I told him to stick it. Hell, no.”

August 17, 2010 in Death Penalty Reforms, Victims' Rights At Sentencing | Permalink | Comments (14) | TrackBack

Thursday, August 12, 2010

Victim requests restitution, so judge orders 21 years(!) of house arrest

A helpful reader altered me to this notable local sentencing story from Philadelphia, which is headlined "Philadelphia-area thief gets 21 years house arrest." Here are the fascinating details:

An office manager who admitted stealing $475,000 from her employer has been sentenced to 21 years of house arrest so she can work to repay it. Lanette Sansoni's unusual sentence came after her ex-boss said he was more interested in restitution than jail time, her lawyer said.

"This was just a creative compromise," defense attorney A. Charles Peruto Jr. said Thursday. "I think it will encourage her to pay it off, so the judge was pretty smart about it."

Peruto, a veteran defense lawyer in the region, guessed the two-decade term may be a record for house arrest in Pennsylvania. State officials could not immediately confirm that.

Sansoni, 40, has repaid about $275,000 after selling her home in Warminster, just north of Philadelphia, and moving in with her mother. She will remain on house arrest until the remaining $200,000 is repaid to Kenneth Slomine, who owned JRS Settlement Services, a title company in Lower Moreland Township.

Montgomery County Judge Joseph A. Smyth on Wednesday set a payment schedule of $750 a month, which works out to about 21 years. Sansoni can leave home to work but could go to jail if the payments stop. She has a job paying $700 a week, Peruto said, but he wouldn't disclose what it is.

Prosecutors had argued for incarceration for Sansoni, who also served as a title clerk at JRS before it went bust because of her theft. "This is a case that just cried out for jail time," said Assistant District Attorney Steven Bunn, who called Sansoni's crimes "egregious."

"She's not stealing to make ends meet," Bunn said. "She was buying luxury vacations, designer handbags, designer jewelry, and basically living the high life while this company went under."...

Peruto said he expects Sansoni to pay off the debt early and be released from house arrest. "I wouldn't be shocked," he said, "if it was paid off in a couple of years."

August 12, 2010 in Criminal Sentences Alternatives, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (4) | TrackBack

Wednesday, August 11, 2010

Another significant federal child porn restitution decision from NDNY district court

Regular readers know that the issue of whether child porn downloaders should have to pay restitution to the victims portrayed in the pictures they possess has divided federal district courts.  Another such decision and its import is highlighted in this new New York Law Journal piece, which is headlined "Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim: Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images."  Here are excerpts:

A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.

Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."

While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.

His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8. The magistrate judge said the matter was a case of first impression in the 2nd Circuit....

Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit. He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded....

Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh. Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.

"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue." Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.

Some related recent federal child porn restitution posts:

August 11, 2010 in Criminal Sentences Alternatives, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Monday, August 09, 2010

Is Ohio (and the common law) not tough enough on negligent vehicular homicide?

The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month.  The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:

Richard Crabtree was killed Feb. 1 in a car accident.  He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.

The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.

"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.

Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington.  The light turned red.

"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said.  "You have the right to clear that, once everything's stopped.  The other vehicle, for whatever reason, ran the red light."

The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.

Tirpak never accepted blame for the crash, Fridley said.  He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him.  "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.

Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license.  A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.

In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine.  Judge David P. Sunderman found him guilty in Delaware Municipal Court.

Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation.  He also was fined $1,000, sentenced to community service and lost his driver's license for five years.

"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.

When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding.  She could make peace with that.  But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....

Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio.  Ruffing would not speak about the Tirpak case in any detail.  He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....

Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets.  She can expect only $12,500 from his insurance company.

There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy).  But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges.  [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[

Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident.  [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.]  That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules.  If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.

UPDATE:  In response to helpful comments, I have tweaked the commentary in this post to be more accurate.  Most of the tweaking appears in brackets above.

STILL MORE: I see that Scott Greenfield has an interesting new post here at Simple Justice discussing this case.

August 9, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Victims' Rights At Sentencing | Permalink | Comments (17) | TrackBack

Wednesday, August 04, 2010

"Private Plea Bargains"

The title of this post is the title of this great forthcoming piece from my Ohio State colleague Ric Simmons, which is now available via SSRN.  Here is the abstract:

This article analyzes the phenomenon of private criminal settlements; that is, settlements in which the victim or witness agrees not to report the perpetrator to the police in exchange for some consideration on the part of the perpetrator.  The article first examines why these settlements occur and then determines whether or not they should be permitted, and if so, under what circumstances.

There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, which has been used by scholars who have previously considered this issue, has been to treat these settlements as a form of blackmail.  Legislatures in every state have also used this paradigm to criminalize private criminal settlements.  But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.

The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains.  Using this analysis, the true cost of these agreements becomes apparent.  Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system.  The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.

The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements.  It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.

August 4, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, August 02, 2010

Charlie Sheen cuts a plea deal to avoid any prison time for domestic violence offense

Anyone who was concerned that Lindsay Lohan got treated a bit too well by the criminal justice system now has another celebrity sentencing about which to complain.  Here are all the details thanks to this new story at E! Online, which is fittingly headlined "He's No Lindsay! Charlie Sheen Pleads Guilty, Gets Sweetheart Sentence":

It might actually be really great to be Charlie Sheen. Seven months after the fact, the extremely well-paid sitcom star pleaded guilty to third-degree domestic violence for his heated Dec. 25 confrontation with wife Brooke Mueller.

And, instead of heading directly to an Aspen jail as a previous plea deal stipulated, Sheen is expected back at work tomorrow on Two and Half Men.  His home base for the next 30 days will be a rehab center in Malibu, where he'll work on "behavioral modification."

There's a Pitken County employee who's going to be getting a big bouquet of flowers soon...

Once upon a time Sheen was going to spend 30 days in jail in exchange for the court dropping felony menacing and misdemeanor criminal mischief charges against him.  His deal "hit a snag" in June, however, when Beverly Campbell, an employee of the county's Jail Administrative Offices, decided that the actor didn't quality for their system's work release program — which was one of the major perks of his deal.

So, after further negotiations, Sheen's attorney, Yale Galanter, somehow wrangled a 30-day stay at Promises, aka celeb rehab central, in Malibu and 36 hours of domestic violence and anger management counseling for his mischievous client.  Galanter also represented Mueller in the aftermath of Sheen's arrest.

Beyond the specifics of Sheen's "sweetheart" deal here, I wonder if readers are also troubled by the notion of the same attorney representing Sheen in this criminal case and also the victim of his offense in the "aftermath of Sheen's arrest."  Am I wrong to wonder if the attorney here may also be benefiting in various ways from some kind of a sweetheart deal?

August 2, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, June 14, 2010

Restitution, victims' rights, and a classic battle of law versus equity with a twist

The more I reflect on the Justices' work today in the Dolan restitution ruling (available here), the more I think the myriad legal issues surrounding restitution and victims' rights at sentencing will be confounding lower courts and SCOTUS for years to come. I say this largely because, as Dolan shows, issues of restitution and victim's rights in the operation of modern criminal justice systems often present lots of hard questions concerning how to balance law and equity in criminal justice case processing.

As noted here in my first post on Dolan, what makes the ruling so interesting is the composition of the 5-4 ruling: Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas to agree on a pro-victim approach to judicial authority to impose restitution outside statutory time limits, while Chief Justice Roberts authors a sharp dissent accusing the majority of undermining "a system of rules"  which garners the votes of Justices Kennedy, Scalia and Stevens.  I think the vote break-down is so notable and unusual largely because the equitable approach to the applicable restitution law adopted by the majority in this case helps a victim at the expense of a defendant (in contrast to the usual criminal case in which the defendant is urging a court to do equity and the state is urging fidelity to "a system of rules").

I predict that lots of future debates over restitution and victims' rights at sentencing — on issues ranging from who qualifies as a victim to how causation principles should limit restitution awards — will boil down to the same sort of fundamental debate over law and equity that plays out in Dolan.  In this notable first round, it appears that an equitable outcome for victims has carried the day.  But I suspect that, in the many brewing future battles, defendants will have some success arguing that fidelity to the rule of law has to generally carry the day.

June 14, 2010 in Criminal Sentences Alternatives, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, June 08, 2010

"Protecting Crime Victims in Federal Appellate Courts"

The title of this post is the first part of the title of former-judge and now Professor Paul Cassell's latest article advocating for the federal Crime Victims' Rights Act to be given a broad reading. This article is available here via SSRN and its full title is "Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions."  Here is the start of the piece's abstract:

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

June 8, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, May 21, 2010

Detroit City Council to make a victim impact statement in sentencing of former mayor Kwame Kilpatrick

This local article, which is headlined "City Council Writing Victim Statement: Council's Statement To Be Read At Ex-Mayor's Sentencing," reports on an intriguing example of victim input in a high-profile sentencing.  Here are the basic details:

Members of the Detroit City Council want their voices heard next Tuesday in the form of a victim impact statement when former Detroit Mayor Kwame Kilpatrick is sentenced for probation violation.

Council members were meeting with attorney William Goodman Friday to draft the statement. Goodman represented the council when it tried to force Kilpatrick from office before he resigned.

Council members said they want the statement, which will spell out the damage they say Kilpatrick has caused the city, to be read before his sentencing in Wayne County Circuit Court next Tuesday morning.

The Michigan Department of Corrections has said it already has finished Kilpatrick's pre-sentencing report.

Last month, Groner ruled that Kilpatrick violated terms of his probation by failing to report assets and turn over tax refunds toward restitution owed the city. Kilpatrick pleaded guilty in 2008 to misconduct tied to his lying under oath about an affair with a staff member in a whistle-blowers' lawsuit. He served almost four months in jail, agreed to give up his law license and his political career and repay the city $1 million for settling an employment lawsuit related to his misdeeds.

He had been making monthly payments of $3,000 while living in the Dallas area and working as a salesman for information-technology company Covisint.

In February, Groner ordered the stepped-up payments of $79,000 within 30 days and another payment of $240,000 within 90 days after a contentious six-day hearing, spanning from October to December -- which was triggered by Kilpatrick’s claim that he had only $6 a month left after living and family expenses in his new home in Southlake, Texas.

During the hearings, prosecutors revealed Kilpatrick and his wife had hidden assets; put money in other accounts, including $240,000 in loans; live in a rented mansion; and drive fancy SUVs....

Kilpatrick's attorney Michael Allen Schwartz has said he doesn't believe Kilpatrick should serve jail time because that would impede his ability to work and pay back the city.

May 21, 2010 in Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 19, 2010

Ponzi schemer suggests European losses should be excluded from sentencing calculations

This local story about a federal hearing from Tennessee highlights some interesting sentencing arguments being made about a ponzi schemer.  Here are highlights: 

Convicted Gatlinburg swindler Dennis Bolze will testify today in a hearing to determine what factors should be considered in determining his sentence.... Bolze is seeking a reduction in a recommended sentence range of 27 years to 33 years and nine months.

Sentencing is set for June 22. Two of Bolze's local victims testified earlier today. "Dennis Bolze deserves the maximum penalty," said Don Cason, who was a close personal friend of Bolze.

Cason said he and his family have lost nearly everything in Bolze's Ponzi scheme. "He reached into our heart, grabbed it and threw it out," Cason said.

Bolze, hoping to reduce the recommended minimum prison sentence of 27 years, asked to have his dealings in Europe - where most of his victims live - to not be counted against him when his sentence is determined.

Federal prosecutors responded by describing Bolze as a man of "stunning audacity" who should serve close to 34 years in prison.

Documents filed in U.S. District court indicate that Bolze backed off his request to be excused from his European deals after he and his lawyer read letters from victims and reviewed the evidence against him. But he continues to seek a lesser sentence based on other grounds.

Bolze, 60, pleaded guilty in November to running a Ponzi scheme that raked in $21.5 million. Besides the Europeans, his victims include close personal friends in East Tennessee. "Bolze personally traveled to Europe to pitch his Ponzi scheme," Assistant U.S. Attorney Trey Hamilton said in court pleadings. "(His) scheme to defraud had no substantive difference between foreign and domestic investors."...

Hamilton describes as "outlandish" a plan Bolze submitted for making restitution to the victims. And he noted that the seizure and planned sale of Bolze's only known major asset, his 16,000-square-foot custom built home in Gatlinburg, will be of no benefit to his investors because it was used it as collateral to secure several loans.

In their push for a maximum sentence, prosecutors filed as exhibits letters from several devastated and angry investors, whose names were redacted. "I am now 58 years of age and have been in a wheelchair disabled by polio most of my life," one investor wrote. "My mother's money was to help me with my every day living, especially as I got older."

"I personally have lost all of my life savings and all of those of my 85-year-old father," another victim wrote. "Dennis Bolze has robbed me of a contented, financially secure retirement. He has caused my elderly parents great trauma and anxiety."

May 19, 2010 in Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, May 16, 2010

Fascinating fight over victims' rights and defense representation in child porn sentencing

This piece in the Detroit News, which is headlined "Lawyer may face sanctions in child pornography case," reports on a fascinating conflict between a judge and a defense lawyer over the process surrounding the role of a victim in a child porn sentencing.  Here are the interesting details:

A lawyer faces possible sanctions after filing a motion in a child pornography case that a federal judge described as "a blatant attempt to intimidate the minor victim's mother."  But the National Association of Criminal Defense Lawyers has come to the attorney's defense.

U.S. District Judge Bernard A. Friedman said in a May 3 order that a motion from Troy attorney John Freeman seeking formal notice that the victim's mother wished to speak at a sentencing hearing was "unwarranted, baseless and worthy of contempt of court."  Friedman said he will hold a hearing on whether and how Freeman -- a former federal prosecutor -- should be sanctioned.  A date has not been set.

On April 15, Friedman sentenced former Walled Lake Schools official Craig Aleo to 60 years in prison -- more than double what prosecutors requested -- for crimes that included manufacturing child pornography in which a 4-year-old girl was victimized.  Aleo, 64, of Davisburg, has filed a notice of appeal.

Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act.  In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond.  Friedman said no such requirement exists, and the motion "serves as yet another indication ... of the incredible lack of remorse for the victim in this matter."

In a response filed last week by Freeman and his attorney Martin Crandall, Freeman said his motion was intended to "address a potential conflict between (Aleo's) due process rights and a victim's right to be heard at sentencing" and was "never intended to intimidate a witness, nor prevent a victim from being heard."

Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers.  "The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."

As detailed here, the CVRA only provides a right of notice to victims, not a right of notice to a defendant about what victims are likely to say.  Consequently, if Freeman cited only the CVRA to support his motion for defense notice, his motion was misguided.  But, absent strong evidence that Freeman has some truly nefarious intent, even a misguided defense motion requesting notice hardly seem like a sanctionable action.

May 16, 2010 in Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 11, 2010

Notable new note on the CVRA and victims of financial fraud

Thanks to this post at CO, I see that the May 2010 issue of the Minnesota Law Review has this interesting new student note on the ways lower courts are stuggling with aspects of the Crime Victims' Rights Act. The note is by Julie Kaster and is titled "The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act."  Here is the abstract:

The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The CVRA also gives victims the ability to petition for a writ of mandamus if the district court fails to respect the right of allocution. Victims’ rights to allocution are not absolute, however, as the CVRA grants the court the ability to fashion “reasonable procedures” to limit victim allocution. Circuit courts divide over the standard of review that appellate courts should use when reviewing mandamus petitions on issues such as victim allocution. This stark division highlights an underlying tension in the criminal justice system and requires probing analysis into the benefits of allocution, the constitutional protections for the defendant, and the scarce judicial resources of the court. This Note urges Congress to amend the CVRA to empower district courts to limit victim allocution and subject that decision only to the traditionally high standard of mandamus review on appeal.

May 11, 2010 in Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, May 09, 2010

What sentence might victim Sarah Palin urge for her hacker?

In this postfrom last weekend, I noted that there were lots of interesting and important computer crime sentencing issues raised by the recent conviction of a college student who hacked into Sarah Palin's Yahoo Mail account in 2008.  One of those issues concerned whether under the federal Crime Victims Rights Act, Sarah Palin would formally qualify as a "victim" of the criminal hacker.  Professor Paul Cassell, who is an expert and frequent litigator under the CVRA, responds via this postat The Volokh Conspiracy with these insights:

[Would] Sarah Palin ... be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced[?] The answer to that question, I believe, is clearly “yes.”...

The CVRArequires that a person be “directly and proximately” harmed by an offense to be protected by the statute. Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status.

Sarah Palin has condemned the crime – and applauded the recent verdict – on her Facebook page.  It is probable that the Probation Officer preparing the pre-sentence report will contact her. Perhaps she will want to pass along comments directly to the judge as well.  If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.

These helpful points in turn prompt the question that is the title of this current post: what sentence might Sarah Palin urge for her hacker?  I suspect she might avoid recommending (at least publicly) a specific prison term, but might she urge (publicly?) some kind of shaming sanction or community service as part of the sentence? 

Would it be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking, and might Palin seek to be involved in such a shaming/service project?  At the very least, such a video would make for a good Facebook link.

Recent related post:

May 9, 2010 in Offense Characteristics, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Saturday, May 01, 2010

Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase.  Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor.  A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote.  "America's elections depend upon fair competition.  Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play.  As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case.  For example:

1.  Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings?  Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2.  Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing?  On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play."  But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3.  Should Kernell's age be an aggravating or mitigating factor at his sentencing?  On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy.  But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service?  is the recommended guideline range really likely to speak to any of the special factors involved in this case?  Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

May 1, 2010 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Saturday, April 24, 2010

"Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"

The title of this post is the title of this interesting new piece on SSRN from Regina Austin. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim.  Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies.  The common reception of home photographs and moving images affects the interpretation of victim impact videos.  As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. 

The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence.  He wound up with a judgment of life without the possibility of parole.  Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment.

Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder.  Finally, the conclusion offers recommendations for the admission of victim impact videos.

It is my understanding that the submission by defendants of mitigating video evidence at sentencing is becoming a quite common in some courthouses.  Thus, I wonder if the author here or others who agree that certain kinds of "videos are typically too idealistic and idyllic to be really probative evidence" would also be inclined to preclude defense submission of videos. 

April 24, 2010 in Procedure and Proof at Sentencing, Technocorrections, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, April 22, 2010

Some notable new developments in the Polanski prosecution

As detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director."  Here's more:

The California Second District Court of Appeal denied the petition by Samantha Geimer without comment. 

Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."

Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.

Thursday's ruling is unlikely to have any immediate bearing on Polanski's status.  The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad.  The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.

Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:

French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.

The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...

The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.

April 22, 2010 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, April 17, 2010

The significant (and valuable) role of California's death penalty in the Chelsea King case

As regular readers may know, I consider the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be one of the least appreciated and most important justifications for preserving this ultimate punishment.  For this reason (and others), I found especially significant and interesting the role that the California death penalty appeared to play in yesterday's plea deal resolution of the high-profile Chelsea King murder. 

First, here are the basics from this press report, which is headlined "Sex offender pleads guilty to killing two teen girls: In a deal to avoid the death penalty, John Albert Gardner III admits to the murders of Chelsea King, 17, and Amber Dubois, 14."

A 31-year-old registered sex offender pleaded guilty Friday to murdering two teenage girls in northern San Diego County in a deal that spares him from the death penalty. John Albert Gardner III, who previously served five years in prison for beating and molesting a 13-year-old girl, pleaded guilty to the murders of Chelsea King, 17, and Amber Dubois, 14, both during rape attempts. In exchange for his plea at the hastily arranged hearing, Gardner will be returned to prison for life, without the possibility of parole....

Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families.

In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.

Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder.

Second, consider this effective press analysis, which is headlined "Scholars: Plea deal can work for both sides: Families avoid trail, killer avoids death penalty":

Shaun Martin, a University of San Diego law professor who has been following the case, ... Martin noted that taking the death penalty off the table not only spares prosecutors and family members a trial and the possibility of an acquittal, it also saves the state millions of dollars in legal expenses.

Because death sentences come with an automatic and lengthy appeals process, the state typically spends years on appeals and spends $2 million or more to impose the penalty, he said.

“Look at David Westerfield: He’s still around,” said Martin, referring to the Sabre Springs man convicted of killing Danielle van Dam in 2002. “When you can avoid a trial and have someone put in prison for the rest of their life, that’s not all that different than someone sentenced to death — at least for the next 15 years.”

Finally, let's all reflect on how not only the availability, but also the rareness, of executions in California seems to have been essential to greasing the wheels of justice in this case.  Without the prospect of a death sentence John Albert Gardner seem very unlikely to plead guilty (especially in the Amber Dubois case).  But without the prospect of 20+ years of capital litigation over a death sentence before an execution, the prosecutors and the family of the victims likely would not have been willing or eager to let Gardner cut this deal.

April 17, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

State prosecutors arguing against rights of victim in Polanski case

1_nf_fb_cover As detailed at this link, tomorrow officially starts National Crime Victims’ Rights Week (NCVRW), which has been a special week designated by the US Department of Justice for "promoting victims’ rights and honoring crime victims and those who advocate on their behalf" each April since 1981.  Thus, there is a special and sad temporal irony in this notable news story out of California, which is headlined "Prosecutors argue Polanski victim can't alter case." Here are the details:

Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday.

In a filing to the California Second District Court of Appeal, Los Angeles County prosecutors argue a recent constitutional revision spelling out crime victims' rights does not grant them the power to determine the outcome of criminal cases.

They are also asking the appeals court to reject requests by Polanski's victim, Samantha Geimer, to have the case heard in another county and unseal recent testimony by a former prosecutor.

Prosecutors argue that granting her request for dismissal would "fundamentally alter the way in which crimes are prosecuted."  The filing argues that if victims were parties to criminal cases, cases could be dropped either through intimidation, coercion or public pressure.

Geimer petitioned the appeals court to dismiss the case and make the other rulings in a March petition.  That filing argued a 2008 constitutional amendment, dubbed Marsy's Law, gives victims more input into criminal cases. Geimer's attorney, Lawrence Silver, has argued twice before that the amendment meant his client's request for dismissal should be considered....

Geimer's filing is a separate appeal from one being pursued by Polanski's attorneys that seeks the appointment of a special counsel to investigate alleged judicial misconduct in the case.  The court has not yet ruled on Polanski's appeal.

California voters in November 2008 approved a measure that wrote specific victims' rights into the state constitution, including giving them more notice about criminal proceedings.  Geimer has repeatedly sought to have the case dismissed, arguing that renewed interest of the case and media coverage has led to her being repeatedly victimized.

I am troubled, but not at all surprised, that California state prosecutors are aggressively seeking to limit a crime victims' rights when those rights do not serve their interests.  Prosecutors are often eager to promote the rights of crime victims when it serves their parochial interests in a particular criminal case, but then are also often likely to disregard or even seek to dismiss the rights of crime victims when it undermines their interests in a particular case.

In light of the official start of National Crime Victims’ Rights Week, I wonder if any officials who work for the federal Office for Victims of Crime-- whose motto is "Putting Victims First" -- have considered filling amicus briefs in support of Samantha Geimer in the Polanski case.

April 17, 2010 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, April 06, 2010

The latest "grand" development in the debate over child porn restitution "settlements"

This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:

Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims.  Others, not a dime.  On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy."  The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.

It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney.  Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims.  "We applaud the judge for what he's done," Marsh said Monday.

The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case.  Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country.  As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.

Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases.  A few courts have ordered millions.  Some have ordered nothing....

Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system.  Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...

Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case.  Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.

The prosecutor replied that Amy was, indeed, entitled to restitution.  On Monday, all sides agreed that $1,000 was appropriate.  Officials with the U.S. attorney's office declined to comment further.

Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.

It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate."  Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense.  Still, functionally, this process does not seem like classic and traditional criminal law.  Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.

April 6, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 15, 2010

Any pre-game predictions or hopes for today's federal sentencing of Erin Andrews' stalker?

As detailed in this new AP article, which is headlined "ESPN's Erin Andrews' stalker to get sentence in LA," a high-profile federal sentencing involving a high-profile victim is scheduled for this afternoon.  Here are the basics:

The man convicted of stalking ESPN reporter Erin Andrews and shooting nude videos of her through a hotel room peephole is facing sentencing in a Los Angeles courtroom.

Michael Barrett, a 48-year-old Chicago-area insurance executive, has pleaded guilty to interstate stalking and agreed to a 27-month prison sentence. Barrett is suspected of renting hotel rooms adjacent to Andrews in three cities in 2008, including Milwaukee.

Andrews is expected to address the court and talk to reporters after the Monday hearing.  Her attorney has said she did not agree to the sentence outlined in the plea bargain, and a sentencing memo filed last month noted that she wants Barrett to pay her about $335,000 in restitution.

As I have noted in prior posts here and here, both the recommended prison sentence and the requested restitution amount are not without controversy.  My gut tells me that Barrett will end up getting slightly more than 27-months as a prison sentence, but will also be required to pay less than Andrews seeks in restitution.  But that's just a guess based on no special knowledge or insights (and also based on the assumption that Andrews specifically urges a longer prison sentence in court today).

More fundamentally, this case seems like a perfect setting for some creative, shaming-type sanctions in addition to the traditional prison term.  Requiring Barrett, say, to post nude videos of himself on to the internet would have somewhat of an "eye-for-an-eye" kind of appeal, but I fear someone like Barrett might enjoy such a punishment too much.  Or, assuming Barrett is a sports fan, how about a lifetime ban on watching ESPN's Sportscenter or on watching the NCAA baskeball tournament would really put a hurt on him.  Or maybe Barrett should be required to vote repeatedly for Andrews to help her win on this season's Dancing with the Stars.

Related posts:

UPDATE:  This AP report on this afternoon's Barrett sentencing suggests my prediction of the sentence was spot-on:

An Illinois insurance executive who secretly shot nude videos of ESPN reporter Erin Andrews was sentenced Monday to 2 1/2 years in prison before giving a tearful apology that was harshly rebuked by his victim....

Barrett, who has until May 3 to surrender, was ordered to have supervised probation for three years after his release, during which he will be prohibited from contacting Andrews, her family or friends.

He will not be allowed to stay in a hotel without approval of a probation officer and if he accepts employment somewhere, Andrews will be notified.  Barrett was also ordered to pay $5,000 in fines and $7,366 in restitution, but the judge said further restitution may be imposed to compensate ESPN.

March 15, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

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.


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