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.
Thursday, September 23, 2010
Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvementA 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.
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.
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.
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.
Thursday, September 16, 2010
Restitution terms debated in another federal child porn downloading sentencingAs 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:
Friday, August 27, 2010
Debate in Hawaii over how tough to get on drunk drivers who killThis 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.
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.”
Thursday, August 12, 2010
Victim requests restitution, so judge orders 21 years(!) of house arrestA 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."
Wednesday, August 11, 2010
Another significant federal child porn restitution decision from NDNY district courtRegular 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:
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.
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.
Monday, August 02, 2010
Charlie Sheen cuts a plea deal to avoid any prison time for domestic violence offenseAnyone 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?
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.
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.
Friday, May 21, 2010
Detroit City Council to make a victim impact statement in sentencing of former mayor Kwame KilpatrickThis 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.
Wednesday, May 19, 2010
Ponzi schemer suggests European losses should be excluded from sentencing calculationsThis 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."
Sunday, May 16, 2010
Fascinating fight over victims' rights and defense representation in child porn sentencingThis 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.
Tuesday, May 11, 2010
Notable new note on the CVRA and victims of financial fraudThanks 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.
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:
Saturday, May 01, 2010
Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mailAs 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)?