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October 15, 2011

"Florida firing squads? What has death penalty supporters all riled up?"

The title of this post is the headline of this new article in the Christian Science Monitor, which gets started this way:

A majority of Americans seem to agree: They want the death penalty. And in a majority of states, the death penalty is legal.  So why are supporters of the death penalty engaging in so much heated rhetoric when, by all appearances, they seem to have both public opinion and the law on their side?

A case in point: Republican presidential contender Rick Perry received booming applause from a debate audience last month after he said he “never struggled” with any of the 234 executions he presided over during his watch as Texas governor.

And now in Florida, a state that already has capital punishment on the books and carried out an execution as recently as late September, a Republican lawmaker is proposing a bill to do away with lethal injection and only allow execution by electrocution or firing squad.

So what is happening here?  Some analysts suggest that those who think capital punishment is the ultimate crime deterrent are becoming increasingly insecure in the face of a resolute opposition to the death penalty, and that is moving them to find louder and more visible ways of making their position known.

In Florida, state Rep. Brad Drake (R) said his legislation is in response to the execution of Manuel Valle on Sept. 29, which was delayed by legal battles over the mixture of lethal drugs used in the procedure.

In a statement, Representative Drake said he is “tired of being humane to inhumane people,” and believes harsher punishment is justified to achieve justice for the most heinous crimes in his state.  “Let’s end the debate.  We still have Old Sparky,” he said. “And if that doesn’t suit the criminal, then we will provide them with a .45 caliber lead cocktail instead.”

Some recent and older related posts: 

October 15, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Sex offender registers Occupy protest camp as home address

This local article from Oregon, which is headlined "Sex offender claims Occupy Portland as address," reports on an interesting new connection between recent public protests and crime and punishment. Here are excerpts:

Portland police report that one of the residents of the Occupy Portland camp is a sex offender from California. A police lieutenant says the man registered at the Portland Police headquarters, and gave his local address as ‘Lownsdale Square, Occupy Portland.'

Protesters whom FOX 12 spoke with remained unconcerned that a sex offender may be in their midst....

"He is in Portland from California, and he listed his address as ‘ Lownsdale Square, Occupy Portland,'" Said Portland Police Lieutenant Robert King. King says the man registered with detectives as Raymond Allen Curtis, 32, and is complying with the law by checking in with Portland Police.

"It doesn't concern me, ‘cause I lived in Southeast Portland where there's one in every corner and every house anyways," Julianne Dunn says. "You never know when you could be attacked wherever you're at. So you have to be aware of your surroundings."

Surrounded by City Hall, the Justice Center and the Multnomah County courthouse, campers are preparing for the second weekend of Occupy Portland.

October 15, 2011 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 14, 2011

Long Island's "mini-Madoff" gets 25-year prison term

As detailed in this Reuters report, a "Long Island man was sentenced to 25 years in prison Friday after admitting to stealing more than $195 million from thousands of investors in the course of a five-year, $400-million Ponzi scheme."  Here is more:

Nicholas Cosmo, 40, was ordered by U.S. District Judge Denis Hurley to repay $179 million to more than 4,000 investors who thought they were investing in short-term commercial bridge loans through Cosmo's two Long Island-based companies, Agape World Inc and Agape Merchant Advance.

Instead, prosecutors said, Cosmo used new investments to pay returns to investors, in a classic Ponzi structure.  Media accounts dubbed Cosmo a "mini-Madoff" following his arrest in January 2009, because of the similarity of his scheme to that of New York investment manager Bernard Madoff's multi-billion-dollar swindle, which had been discovered only weeks earlier.

Cosmo pleaded guilty in October 2010 to federal mail and wire fraud charges.  Under federal sentencing guidelines he faced up to 40 years in prison.  In contrast to many of Madoff's victims, who were well-off Manhattan residents, charities and companies, prosecutors said, Cosmo and Agape preyed on working-class families, U.S. soldiers and others who wound up losing all or part of their life savings....

This will be the second fraud-related prison term for Cosmo.  In 1999, he was sentenced to serve 21 months after admitting to having misled investors, commingled funds and forged documents while working at a stock brokerage firm.  He was stripped of his broker's license by the National Association of Securities Dealers in 2000 and forbidden from associating with other registered securities dealers.

October 14, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Feds now talking about prosecuting media running medical marijuana ads!?!

This new AP story, which is headlined "US attorney considering going after newspaper, other media running ads for pot dispensaries," highlights how the federal government's latest push in the "war on pot" is now going past serious federalism concerns and starting to implicate serious First Amendment issues.  Here are the basics:

The chief federal prosecutor in San Diego is contemplating expanding a federal crackdown on the medical marijuana industry by going after newspapers, radio stations and other outlets that run advertisements for California’s pot dispensaries, her office told The Associated Press on Thursday.

U.S. Attorney Laura Duffy made the comments initially to California Watch, a project of the nonprofit Center for Investigative Journalism. They come a week after she and three other U.S. attorneys in California vowed to close medical marijuana businesses they deem questionable and single out people who rent buildings or land to the industry.

“I’m not just seeing print advertising,” Duffy told California Watch. “I’m actually hearing radio and seeing TV advertising. It’s gone mainstream. Not only is it inappropriate — one has to wonder what kind of message we’re sending to our children — it’s against the law.”

Duffy wasn’t available Thursday to speak to the AP but her office confirmed the comments published by California Watch. The federal government will determine whether the media crackdown is necessary as the results of last week’s actions unfold, Duffy’s spokeswoman Debra Hartman said. She cited a federal law that prohibits people from placing ads that have the purpose of buying or selling a controlled substance.

“If I own a newspaper ... or I own a TV station, and I’m going to take in your money to place these ads, I’m the person who is placing these ads,” Duffy said, according to California Watch.  “I am willing to read (the law) expansively and if a court wants to more narrowly define it, that would be up to the court.”...

Duffy’s comments are creating a buzz in the media industry, California Newspaper Publishers Association executive director Tom Newton said. As it stands now, advertisers are responsible for the contents of their ads in newspapers, he said. “If they are false, misleading or fall below the line in other legal ways, advertisers are responsible,” he said. “Newspapers don’t have the staff or time to vet every claim in every ad that they run.”

Duffy, whose district encompasses San Diego and Imperial counties, and the U.S. attorneys in three other California districts sent written warnings last week to landlords leasing property to dozens of warehouses and agricultural parcels where marijuana is being grown and for retail spaces where it is sold, telling them to evict their tenants or face criminal charges or seizure of their assets.

The attorneys say the state’s law legalizing medical marijuana was intended to allow it to be supplied to seriously ill people on a nonprofit basis.  But the law has been abused by people who are just looking to get rich, they say.  The action comes only months after the Obama administration tightened its stance on the issue.

Media owners were waiting to see what happens before reacting publicly, Newton said. “I think everybody needs to take a breath here and really think about the implications of this issue and whether or not this is a reasonable effort and use of the limited resources of the U.S. attorney’s office,” Newton said.

Wow!  I have a very hard time not being a bit stunned by U.S. Attorney Laura Duffy's comments, which seem to have planned out and have elements of fascist and anti-capitalist instincts.  I hope not merely proponents of medical marijuana and states' rights will be troubled by this, but that everyone who believes in basic American constitutional principles will be at least a bit concerned by what USA Duffy is saying here.

First, rather than make a fair assessment of whether Congress authorized these kinds of prosecutions and/or whether the Constitution would permit them — an assessment she is duty-bound and has sworn to do — USA Duffy here proudly asserts that she will actively try to expand the federal criminal law to scare and potentially imprison those who in the private media who provide a conduit for local and state businesses to advertise their services.  And rather than understand that people "just looking to get rich" is at the heart of our capitalist free-market commitment to allowing private people to provide desired products to willing consumers, USA Duffy here proudly claims that she knows better than state officials in California who should not be allowed to be in the medical marijuana business and that federal prosecutors should be able to punish media outlets for not sharing her particular views of good versus bad businesses in the state.

Second, it is not as if there are no other serious crime threats in California to occupy the activities of the US Attorneys out there.  As everyone knows, just in the last few weeks, California has begun to implement its prison reduction plans by returning large numbers of state prisoners to their local communities.  Might it not make a bit more sense for the feds in California to invest time and energy helping state and local officials figure out how best to assess who now most threatens the community?  I doubt that ads in the newspaper and the radio are the most serious threat to kids in San Diego.  And, unless the US Attorney's office under USA Duffy has fully and permanently fixed all the problems of illegal immigration on California's southern border, I do not quite understand why they think some medical marijuana ads are more harmful to the community than illegal immigrants.

I could go on and on, but I trust I have made my views here clear that I think this federal prosecutorial threat to the local media risks sending a lot more bad messages to American children than a few pot dispensary ads.  That all said, I hope I have not already shouted down any readers who might be supporting of U.S. Attorney Laura Duffy's comments.  I genuinely wish to hear from readers who may view the threatened federal prosecution of local media running pot dispensaries advertisements as not only constitutionally sound, but also a good modern use of federal resources in Southern California.

Some recent and older related posts:

October 14, 2011 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (17) | TrackBack

"Second Chances After Prison"

The title of this post is the headline of this new New York Times editorial, which includes these important points:

With state prison costs driven mainly by recidivism, the federal government must do all it can to support programs like the Second Chance Act, which guides newly released prisoners to drug treatment, mental health care, housing and jobs to keep them from going right back to jail.  The House, which supports continued funding, must hold fast against a Senate appropriations bill that would zero out this important program.

Of about 700,000 people released from prisons this year, more than two-thirds will be re-arrested and more than half returned to prison within three years. Even modest reductions in recidivism could yield huge savings.  For example, a study released earlier this year by the Pew Charitable Trusts estimated that Texas could save $33.6 million, New York $42 million and California $233 million in the first year alone if they cut recidivism by even 10 percent. The Second Chance Act, signed into law by George W. Bush in 2008, supports re-entry services for newly released prisoners, who typically land on the street without money, skills or a place to live.  The program was initially authorized at $165 million. But Congress funded it at only $25 million for fiscal 2009, $100 million for 2010 and $83 million this year.  Even so, a recent analysis by the Council of State Governments Justice Center shows promising re-entry projects financed by this law springing up all over the country....

Representative Frank Wolf, Republican of Virginia, has promised to fight in the conference committee for the House bill that would invest $70 million into the Second Chance Act. The Senate, by contrast, has set aside no money for the program while earmarking more than $300 million in new aid for federal prisons.  The Senate has its priorities backward.

The phrase "penny-wise and pound-foolish" comes to mind a lot when I think about how Congress deals with a variety of modern crime and punishment issues.  And, sadly, many recent sentencing and punishment choices by Congress and the Obama Administration are not even penny-wise.

October 14, 2011 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (18) | TrackBack

Split First Circuit says state can refuse to turn over murderer to feds for capital prosecution

As detailed in this local report, the First Circuit "ruled Thursday that Rhode Island does not have to surrender accused murderer Jason Wayne Pleau to federal prosecutors who asked to have him tried in federal court where, if convicted, he potentially could have faced the death penalty." Here are the details:

In June, Governor Chafee refused the prosecutors' request for Pleau to face trial in U.S. District Court for allegedly plotting with a Massachusetts couple to rob a man as he tried to make a bank deposit.  Pleau is also accused of killing a gas station manager outside a Woonsocket bank.  Chafee said his refusal was based on what he said is Rhode Island law's rejection of the death penalty.

Lawyers for Pleau appealed a court order by U.S. District Judge William E. Smith in June that said the state had to surrender him to federal custody.  In August, the three-judge panel of the 1st U.S. Circuit Court of Appeals he granted Chafee's bid to become a full party in the appeal.

On Thursday, The appeals panel held in its opinion that the federal government is bound by the terms of a law that govern transfer of inmates between states.  In August, Chafee's chief counsel told the appeals court that prosecutors had chosen that route and must adhere to all its terms, including a provision that a governor has the authority to deny a request for custody.

The full First Circuit ruling in US v. Pleau, with both the majority and dissenting opinions, can be found at this link.  It will be interesting to see if the feds seek en banc review or even Supreme Court review of this interesting decision.

Related posts:

October 14, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

October 13, 2011

Notable reasons district judge gave Raj Rajaratnam a below-guideline sentence

This updated New York Times account of today's sentencing of insider-trader Raj Rajaratnam provides this interesting account of the reasons articulated by U.S. District Judge Richard J. Holwell for his sentencing decision:

At 11 years, the sentence lacks the symbolic heft of the range of 19 to 24 years that the government had sought under federal sentencing guidelines. At Thursday’s hearing, Reed Brodsky, a federal prosecutor, said Mr. Rajaratnam deserved an outsize penalty because his crimes were “brazen, pervasive and egregious” and “there is no one who is Mr. Rajaratnam’s equal in terms of the breadth and scope of his insider-trading crimes.”

In imposing his sentence, Judge Holwell cited a number of mitigating factors that he said caused him to hand down a term that was substantially lower than the nonbinding federal guidelines. He said Mr. Rajaratnam’s “good works figure into the equation,” citing his financial help for victims of the tsunami in Sri Lanka, the earthquakes in Pakistan and the Sept. 11 attacks.

Judge Holwell also disclosed that Mr. Rajaratnam had advanced diabetes that was leading to kidney failure, and said that prison “is a more intense experience for people with serious health conditions.”

“Some form of forbearance, however constrained by circumstance, is fundamental to our system of justice and appropriate here,” the judge said.

Meanwhile, this new CNBC commentary by John Carney is headlined "Raj's Sentence Is Too Long," and here is a taste:

Rajaratnam received the longest prison sentence ever for insider trading.  But unlike those convicted of any other kind of fraud, Rajaratnam’s sentence is not at all linked to the harm he inflicted on his victims.  The reason why Rajaratnam’s sentence isn’t linked to any victims is because no one has found any victims.  They just don’t exist....

You’d have a better case for the actual inflicting of harm if a company were intentionally concealing information so that insiders could trade on the information while outsiders traded on ignorance.  But no one alleges the companies Raj was convicted of trading were in cahoots with him. 

Eleven years for a crime without a victim. Does that seem like justice?

Some related recent posts:

UPDATE:  Writing this new New York Times piece, Peter Henning has a terrific account of the legal and prison realities facing Raj in the wake of his sentencing Thursday.

October 13, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Arkansas Supreme Court applies Confrontation Clause to jury sentencing proceeding

As detailed in this local press report, a "defendant who has pleaded guilty to a crime does not lose the right to confront witnesses during sentencing proceedings before a jury, the Arkansas Supreme Court said today in overturning a man’s life sentence for rape." Here are the basics of the ruling:

The jury was allowed to view a video of a state police investigator interviewing the victim.  On appeal, Vankirk, 31, argued that his right of confrontation guaranteed by the U.S. and state constitutions was violated when the trial judge admitted video testimony from a witness who was not present in the courtroom and could not be cross-examined....

In its unanimous opinion today, the Arkansas Supreme Court [explained that] cases [cited by the state] involved sentencing by a judge, not a jury, so they were significantly different from Vankirk’s case.

The court noted that in the case United States v. Mills, which did involve sentencing by a jury, a federal district judge in California ruled that a defendant had the right to confront witnesses during the sentencing phase of a capital murder trial.

Vankirk’s case did not involve the death penalty, but “what constitutional protections apply should not be based on the available punishment,” the state high court said.  “We are convinced that the right of confrontation, guaranteed by both the Sixth Amendment and Article 2, Section 10 (of the Arkansas Constitution), extends to appellant’s proceeding before a jury,” Justice Donald Corbin wrote in the opinion.

The court also said the error was not harmless because the video included testimony that the victim was younger at the time of the first rape than the state had alleged. “This comment alone, which was uncorroborated and went unchallenged because Vankirk was not allowed to question (the victim), was extremely prejudicial,” Corbin wrote in the opinion.

I am very thankful to reader who alerted me to the very interesting opinion in Van Kirk v. Arkansas, No. CR 11-182 (Ark. Oct. 13, 2011) (available here). Here is one of many notable passages from the opinion in Van Kirk:

The State ... focuses on the United States Supreme Court case of Williams v. New York, 337 U.S. 241 (1949), to support its conclusion that the right of confrontation does not apply in sentencing proceedings.  Williams, however, does not stand for that explicit proposition....  We find the State’s reliance on Williams to be unpersuasive.  First, Williams involved a challenge under the Due Process Clause, not the Confrontation Clause. And, second, it was decided more than fifteen years prior to the Pointer decision that made the Confrontation Clause applicable to the states.  Moreover, the issue as framed in Williams differs significantly from the one presented to us today in that Williams involved a judge and what information he could consider in sentencing; whereas, here, there was a jury impaneled to weigh evidence and impose punishment.

We believe that the federal district court’s decision in United States v. Mills, 446 F. Supp. 2d 1115 (C.D. Cal. 2006), where the court concluded that the constitutional right to confrontation applies to both phases of federal-capital sentencing to be more persuasive. We are cognizant of the fact that Mills is a death-penalty case but find the court’s analysis of the constitutional protections afforded during sentencing to be noteworthy nonetheless.  In reaching this conclusion, the court reviewed the historical approach by a number of courts in assessing what rights a defendant enjoys during sentencing and holding that the Confrontation Clause forbids the admission of testimonial hearsay during the death-penalty phase of a case.  Again, although Mills differs in that it is a death-penalty case, its rationale still applies to the facts of the case before us, as both Mills and the instant case involve sentencing by a jury.  As the Court of Appeals of North Carolina reasoned, the focus in determining what constitutional protections apply should not be based on the available punishment.  State v. Hurt, 702 S.E.2d 82 (N.C. Ct. App. 2010).

October 13, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Ohio newspaper asks "Why not put executions on hold?"

The Canton Repository has this notable new editorial headlined "Why not put executions on hold?".  Here is the text:

In his 10 months as governor, John Kasich has commuted two death row inmates’ sentences to life in prison without parole.  He has allowed four others to be executed. No one can doubt that he favors the death penalty but decides each request for clemency based on whether he believes justice will be served.

Which makes his office’s response puzzling when it comes to requests that he declare a moratorium on executions until a new committee can review how the death penalty is carried out in Ohio.

Twice that we know of this year — most recently this week — Kasich has been asked to institute a moratorium. Twice his spokesman has said only that the governor supports the death penalty.  It’s as if supporters of a moratorium and the governor’s office are talking past each other.  The answer doesn’t match up with the question.

Ohio Chief Justice Maureen O’Connor said recently she will appoint a 20-member committee of judges, attorneys, legislators and law professors to review state laws and examine how death penalty cases are handled across the state.  Earlier reviews by the American Bar Association and The Associated Press had found geographic and racial disparities in the frequency of death sentences being handed down and disparities in the quality of representation of defendants in death penalty cases.

If even Ohio’s top judge, who is a former county prosecutor, sees a need to review the procedures, wouldn’t the governor want to at least consider putting executions on hold pending the committee’s review?

October 13, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

"Rajaratnam Is Sentenced to 11 Years"

Somewhat surprisingly, I think, today's high-profile white-collar federal sentencing led to a sentence closer to what the defense sought than what prosecutors wanted.  The headline of this post comes from this New York Times account of today's sentencing:

The fallen hedge fund billionaire Raj Rajaratnam received on Thursday the longest-ever prison sentence for insider trading, a watershed moment in the government’s aggressive two-year campaign to root out the illegal exchange of confidential information on Wall Street.

Judge Richard J. Holwell sentenced Mr. Rajaratnam, the former head of the Galleon Group hedge fund, to 11 years in prison. A jury convicted him of securities fraud and conspiracy in May after a two-month trial....

Calling him “the modern face of illegal insider trading,” prosecutors accused Mr. Rajaratnam of using a corrupt network of well-placed tipsters – including former executives of Intel, I.B.M. and the consulting firm McKinsey & Company – to illicitly gain about $64 million.

The 11-year sentence was lower than the range of roughly 19 to 24 years requested by the government. Mr. Rajaratnam’s historic prison sentence continues a trend of ever-stiffer penalties against white-collar criminals. Legal experts say that the increased prison terms are in part a result of federal sentencing guidelines, passed in 1987, which link the length of a sentence to the dollar amount involved in the fraud....

Corporate wrongdoers have received record-long sentences in recent years. Bernard L. Madoff is serving 150 years for cheating investors in an epic Ponzi scheme. Lee B. Farkas, a former mortgage company executive, received 30 years for his role in a $2.9 billion bank-fraud scheme. Last month, Adley H. Abdulwahab, who was convicted of participating in a $100 million fraud scheme that preyed on retirees, was sentenced to 60 years in prison....

John C. Dowd, Mr. Rajaratnam’s lawyer, had asked the judge to impose a sentence closer to six to eight years, calling the government’s request “grotesquely severe.” In arguing for a lesser term, Mr. Dowd pointed out that a stiff penalty for Mr. Rajaratnam would be on par with the average sentences for violent crimes like kidnapping and sexual abuse.

Advocates of more lenient insider-trading sentences also say that the crime does not have any real identifiable victims, whereas other white-collar crimes such as Ponzi schemes or corporate accounting frauds destroy lives and livelihoods....

“One legacy of this case that Wall Street will be more careful about what they say on telephones than they used to be,” said David Siegal, a white-collar defense lawyer and former federal prosecutor at Haynes & Boone.

Mr. Rajaratnam’s lawyers are expected to focus their appeal on attacking the judge’s decision to admit the wiretapped calls as evidence. They will argue, among other things, that Congress has not authorized the use of wiretap surveillance for insider-trading cases. But most lawyers say that the odds of a reversal are low. “An appeals court will show great deference to the trial court judge on this issue,” Mr. Siegal said.

Mr. Rajaratnam must report within 60 days to the Bureau of Prisons, which will assign him to a correctional facility. Until then, he will be confined to his home, a duplex apartment on Sutton Place. With no parole in the federal prison system, he will serve out his entire sentence, though he can get a slight reduction for good behavior.

October 13, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Any recommendations or predictions for today's Rajaratnam insider-trading sentencing?

One of the highest-profile white-collar cases in recent years finally gets to sentencing this morning, as detailed in this Bloomberg piece headlined "Rajaratnam to Be Sentenced Today."  Here are the basics:

Galleon Group LLC’s Raj Rajaratnam will be sentenced today for masterminding the biggest hedge-fund insider trading scheme in U.S. history, facing a federal judge who has broad discretion in setting his punishment.

U.S. District Judge Richard Holwell in Manhattan presided over the jury trial in which Rajaratnam was convicted of 14 counts of securities fraud and conspiracy.  He will consult federal sentencing guidelines and his own “gut feeling,” one legal expert said.  Depending on the result, Rajaratnam, 54, may spend much of the rest of his life in prison.

Holwell will consider additional factors including the sentences given to other defendants in the ring and the utility of “sending a message” to those who might be tempted to trade on illegal inside tips, according to Anthony Sabino, who teaches law at St. John’s University in New York.  “He is supposed to look at everything,” said Sabino, who predicted Rajaratnam will get almost 15 years. “It’s always a matter of discretion or gut feeling.”

Prosecutors called Rajaratnam a “serial insider trader” who illegally made $72 million by corrupting friends and business associates.  The government is asking Holwell to sentence Rajaratnam to 19 1/2 years to 24 1/2 years, which, prosecutors said, is the term suggested by the federal guidelines.

Rajaratnam’s lawyers said the government overstated the amount of money their client gained in the fraud and miscalculated other sentencing factors, resulting in a “grotesquely severe” recommendation. Rajaratnam is seeking a sentence “substantially below” the guideline range. Rajaratnam made only $7.4 million, they said.  They argued for a guideline calculation that would call for a sentence of 6 1/2 to 8 years....

Rajaratnam has also asked for leniency based on medical conditions he said would be life-threatening if he’s sent to prison. He hasn’t publicly disclosed the nature of his ailment, and Holwell has kept court papers discussing it secret....

Sabino said he would be surprised if Holwell gives Rajaratnam the sentence the government is seeking. “This is a nonviolent crime,” said Sabino. “He’s not a drug kingpin, he’s not a terrorist, he didn’t murder anybody.  And most of all, this is his first offense.”

Holwell is also unlikely to sentence Rajaratnam to eight years or less, according to Sabino. The judge will probably use the sentence to try to deter would-be Wall Street inside traders, Sabino said.   “A message needs to be sent to the Street,” Sabino said. “This was a very serious crime by Rajaratnam. It must be punished and it must be punished severely.”

In court papers, the government urged Holwell to make an example of Rajaratnam, saying he “represents the worst of illegal insider trading.”  Prosecutors compared him to Enron Corp.’s Jeffrey Skilling and WorldCom Inc.’s Bernard Ebbers, convicted in what prosecutors called “the worst of accounting frauds,” and Bernard Madoff, the man behind history’s biggest Ponzi scheme.  Skilling was sentenced to 24 years in prison, Ebbers to 25 years and Madoff to 150 years.

Judges have sentenced defendants convicted in connection with the Galleon investigation to an average of about three years.  Last month, U.S. District Judge Richard Sullivan gave Zvi Goffer 10 years for leading a Galleon-linked ring that bribed lawyers for inside tips about transactions involving their law firm’s clients....  Craig Drimal, another ex-Galleon trader, was sentenced to 5 1/2 years in prison. Danielle Chiesi, a former analyst at New Castle Funds LLC, got 2 1/2 years for passing tips to Rajaratnam and others. Drimal and Chiesi both pleaded guilty.

As of February, almost half of the 43 defendants sentenced for insider trading in the New York court from 2003 to 2010 avoided jail altogether, according to a Bloomberg analysis of court records.  Many of those defendants cooperated with the government or pleaded guilty, which often results in a lesser sentence....

Yesterday, prosecutors told Holwell that Rajaratnam shouldn’t be granted bail pending his appeal because he’s a flight risk. Rajaratnam, a naturalized U.S. citizen, has ties to Sri Lanka, where he was born, they said in court papers.

I think 15 years' imprisonment is a pretty good prediction for what Rajaratnam is likely to get.  In my view, the 10 years given to Zvi Goffer serves as a kind of floor and the roughly 20 years urged by prosecutors serves as a kind of ceiling.  I would not be surprised if the sentence ends up a little higher or a little lower than 15, perhaps in part to avoid the impression that the outcome here was just a split-the-difference choice between these poles.

Some related recent posts:

UPDATE:  Rajaratnam got "only" 11 years, as reported in this new post.

October 13, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

Additional written testimony submitted at House Booker hearing

At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups.  I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM).  I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.

UPDATE:  Here is a link to testimony from the ACLU submitted to the house subcommittee.

Some recent related posts about the House hearing:

October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

"Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners"

The title of this post is the title of this new article available via SSRN by Priscilla Ocen.  Here is the abstract:

The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States.  This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation.  At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use.

More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South.  The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners.

Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level.  This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices.  Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause.  This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.

October 13, 2011 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (50) | TrackBack

Interesting new numbers in latest Gallup poll of death penalty public opinions

Zc0mmtsaguquydfhqdeteaThis new release from the folks at Gallup, which is headlined "In U.S., Support for Death Penalty Falls to 39-Year Low; Fifty-two percent say the death penalty is applied fairly," reports on the results of the latest public survey on the death penalty. Here are highlights:

Sixty-one percent of Americans approve of using the death penalty for persons convicted of murder, down from 64% last year.  This is the lowest level of support since 1972, the year the Supreme Court voided all existing state death penalty laws in Furman v. Georgia.

Gallup first asked about use of the death penalty in murder cases in 1936.  At that time, 59% of Americans supported it and 38% opposed it. Americans' views on the death penalty have varied significantly over the 75 years since, including a period from the late 1950s to the early 1970s when less than a majority of Americans favored it.  Support climbed to its highest levels from the mid-1980s through the mid-1990s, including the all-time high of 80% who favored the death penalty in 1994.  Since then, support has gradually declined; this year's measure of 61% marks a 19-percentage-point drop over the past 17 years, and a 3-point drop from last year's measure.

The Oct. 6-9 poll was conducted shortly after the execution of Troy Davis in Georgia, which generated widespread protests and extensive news coverage.  This could help explain the slight drop in support for the death penalty this year.  However, there have been high-profile executions in the news in previous years without concomitant drops in death penalty support, making it less clear that such events have a direct impact on attitudes.

This year, 40% of Americans say the death penalty is not imposed often enough, the lowest such percentage since May 2001, when Gallup first asked this question.  Twenty-five percent say the death penalty is used too often, the highest such percentage yet that Gallup has measured.  The rest (27%) say the death penalty is imposed about the right amount....

Support for the death penalty is highly partisan in nature.  Almost three-quarters of Republicans and independents who lean Republican approve, compared with 46% of Democrats and independents who lean Democratic.  Additionally, men, whites, and those living in the South and Midwest are among those most likely to support the death penalty. Americans younger than age 30 are less likely to support the death penalty than are those who are 30 and older.

October 13, 2011 in Death Penalty Reforms, Who Sentences | Permalink | Comments (5) | TrackBack

October 12, 2011

"Inside-Trade Sentencing Gets Tougher"

The title of this post is the headline of this new Wall Street Journal piece, which gets started this way:

When disgraced hedge-fund titan Raj Rajaratnam, Wall Street's latest symbol of perfidy and excess, is sentenced in federal court Thursday, he will come up against a hard and unavoidable truth: Inside traders are facing considerably harsher sentences than they did in the past.  Mr. Rajaratnam is expected to receive among the longest-ever U.S. prison terms for his role in one of the biggest U.S. insider-trading cases ever, lawyers say.
 A higher percentage of those found guilty of such crimes are receiving significant time behind bars than in the past, according to a Wall Street Journal analysis. In the last two years, defendants sent to prison on insider-trading charges in New York federal courts have received a median sentence of about 2½ years, according to the Journal analysis of white-collar sentencing data from court records and archives involving 108 cases. Just Wednesday, hedge-fund trader Michael Kimelman was sentenced to 2½ years in prison for inside trading.

Those sentences compare with a median sentence of 18 months in the past decade and 11½ months from 1993 to 1999, according to the Journal analysis.  Meanwhile, a higher percentage of guilty insider-trading defendants on Wall Street and in corporate America have been incarcerated in recent years, according to the analysis.  In the past two years, 79% of defendants sentenced in New York have been sent to prison, compared with 59% in the 2000s and less than half from 1993 to 1999, the analysis shows.

October 12, 2011 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Washington state struggling with potential corrections budget cuts

2016465414This recent article from the Seattle Times, which is headlined "Budget woes: Will parolees get a free pass?," discusses some of the potential criminal justice consequences of budget cut realities in Washington state.  Here are excerpts:

Prison inmates convicted of murder and other violent crimes could be released without supervision if state lawmakers agree to a drastic set of cuts outlined by the state Department of Corrections.

Under one proposal, roughly 12,000 of the 17,000 felons now supervised in the state's version of parole would be unsupervised upon release from prison, a move one Department of Corrections (DOC) official called "devastating."

Other "reduction alternatives" proposed by DOC include increasing inmates' health-care co-pays to $4 from $3 and releasing inmates judged to be low and moderate risks to re-offend 120 days early, as long as they had not been convicted of a sex offense.

Hoping to head off some proposed cuts, Corrections officials are making budget trims in advance of the state Legislature's special session set for the end of November.  Among expenditures that could be on the chopping block is a 1,000-bed prison that DOC plans to open in Western Washington by 2016.

The state, which is looking to cut nearly $2 billion from the budget this biennium, has asked nearly all major state agencies to submit budget plans reflecting both 5 percent and 10 percent across-the-board cuts.  DOC's budget for the current biennium, which ends in June 2013, is $1.6 billion.  The department already has cut $250 million from its budget over the past three years by closing three prisons and slashing 1,200 jobs.

The deepest cut discussed by DOC would be to the agency's community corrections, or parole, division.  Under the worst-case scenario of a 10 percent cut, 12,000 convicts could be released from community supervision, a move that would save the state about $92 million over 18 months.  It also would require laying off 510 DOC community corrections officers and support staff, Corrections spokesman Chad Lewis said....

Tim Welch, a spokesman for the Washington Federation of State Employees (WSFE), which represents about 40,000 state workers, warns that the cuts to community corrections could endanger the public.  "We view it as wiping out community supervision, and that's going to harm public safety," Welch said.  "It's a neutron bomb against public safety."

Welch, whose union represents about 1,200 community corrections employees, said the WSFE supports several options to achieve cost savings, including the possibility of putting a proposal before voters to raise taxes.

"It's so devastating, I can't imagine what community corrections would look like," said Mark Janney, a community corrections supervisor who heads a DOC office in North Seattle. "We would be the Department of Prisons."...

If the 10 percent proposal is approved, most sex offenders not still in prison, including those supervised by GPS tracking bracelets, no longer would be supervised.  Felons convicted of murder, kidnapping, assault and other violent crimes also no longer would be supervised upon release.

In addition to not having a probation officer with whom to check in, inmates being released would not have help finding services such as housing and treatment for mental health and substance abuse.  Felons who would remain on community supervision would be drug and sex offenders court-ordered to serve a reduced sentence, which includes a combination of incarceration and treatment.  Felons ordered to serve probation for out-of-state crimes also would remain on supervision.

"You're talking about releasing inmates early, without any supervision. It's just really frightening," said Tracey Thompson, secretary of Teamsters Local 117, which represents about 5,500 corrections officers who work inside the prisons.  "How much deeper can you cut in this area without significantly undermining public safety and staff safety?"

In the past, the DOC has been sued by victims of crime for failing to supervise felons adequately. In 2010, for example, the state paid $4.25 million to settle a lawsuit filed by a Burien woman who suffered brain injuries when she was struck by a car driven by a mentally ill felon under DOC supervision.

October 12, 2011 in Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6) | TrackBack

Dangerousness and dignity dicta could make SCOTUS work in Florence of sentencing interest

I have not been following the jail strip-search case before the Supreme Court too closely, in part because it is a Fourth Amendment case and in part because I lack the time to follow everything closely. But this early SCOTUSblog report on today's oral argument in Florence v. Board of Chosen Freeholders leads me now to the suggest that sentencing fans keep a close eye out for this forthcoming opinion.  First, here are parts of the helpdul SCOTUSblog report from Lyle Denniston: 

One thing, and only one thing, emerged clearly after a busy — and often confusing — hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other.  None of the three lawyers argued for that, and nowhere near a majority of the Justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals.   But where five Justices might draw the line was entirely unpredictable after the hearing on Florence v. Board of Chosen Freeholders (docket 10-945).

What might turn out to be decisive is that the Justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem. Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places.

Although there were some comments from the bench — especially from Chief Justice John G. Roberts, Jr. — that not much was in dispute, it seemed obvious that the case involves anything but trivial differences of opinion. The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an “anything goes” policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched — at times in vain — for some guidance on just what potential threats to individual “dignity” were too much to be constitutionally forbidden....

The Court had real difficulty, for example, as the Justices tried to nail down just what Washington lawyer Thomas C. Goldstein was proposing as a Fourth Amendment standard to govern strip-searching.... Goldstein’s approach, indeed, allowed his principal adversary, Washington lawyer Carter G. Phillips, to begin his portion of the argument by saying that Goldstein’s argument moved around so much that it was not exactly clear what his constitutional claim was. But, as matters were to unfold, Phillips, too, wandered at times from his core argument that the Fourth Amendment should simply have nothing to do with the procedures used in jails upon the receipt of new arrestees. He conceded to Justice Sonia Sotomayor, for example, that there is “some constitutional right of privacy” in the jail setting, and conceded that manual inspection of body cavities would invade that right unless there were some strong evidence of a threat to justify it.

Justice Antonin Scalia somewhat sarcastically said that what Phillips seemed to be advocating was a Supreme Court ruling that was limited to the validity of “squatting and coughing” inspections, and nothing more.  Scalia was the Court’s most vigorous champion of jail security, and thus its least skeptical about strip-searching as a routine jail-entry policy.

The most aggressive defense of strip-searching, without any notable limits, came from a Justice Department lawyer, speaking for the federal government. Nicole A. Saharasky, an assistant to the U.S. Solicitor General, resorted to sometimes fanciful conjecture about how even individuals arrested for the most petty crimes — including political protesters — might actually be lurking conspirators to get guns, knives and drugs into jails or prisons. Her strongly emotional argument was notably short on hard evidence to prove her point.

Though I want to read the full transcript myself before calling Florence a "sentencing sleeper," this report on the oral argument leads me to think we could get multiple opinions from a splintered Court in Florence and that important sentencing-related concepts like dangerousness and dignity may be discussed at some lengthy in these opinions.  If nothing else, the Florence case may give us a helpful (and perhaps surprising?) window on the newer Justices' views on what should be considered constitutionally permissible in the name of jail security.

UPDATE:  The oral argument transcript in Florence is now available at this link.

October 12, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

"Underwear bomber" pleads guilty mid-trial, now on to sentencing

As detailed in this new New York Times piece, "Umar Farouk Abdulmutallab, the Nigerian man accused of trying to blow up a commercial airliner on Christmas Day in 2009, abruptly pleaded guilty Wednesday morning to each of the eight counts against him, officials said."  Here is more:

The sudden reversal came before the start of the second day of proceedings in the trial of Mr. Abdulmutallab, who is not a lawyer but who was representing himself.

The eight counts include attempting to use a weapon of mass destruction and conspiring to commit an act of terrorism. The charges carried a penalty of life in prison, but the details of the plea were not immediately available....

In court on Tuesday, Mr. Abdulmutallab, well-educated and from a well-to-do Nigerian family, said little. He wore a colorful tunic, and grasped his hands before him and flipped through papers during much of the proceedings.

For their part, prosecutors laid out a case that appeared to be some cross between an ordinary lineup of witnesses to a crime and a rare courtroom primer in terrorism, Al Qaeda, jihad and martyrdom. Mr. Tukel told jurors that Mr. Abdulmutallab, while still in school, had begun to listen to the tape-recorded messages of Anwar al-Awlaki, the cleric who was recently killed by a missile from an American drone aircraft in Yemen. “He wanted jihad, he sought it out and he found it,” Mr. Tukel said of Mr. Abdulmutallab.

I assume that no formal plea deal was put together in order to get this plea to now happen, and I will be interested to read about just how this high-profile trial came to such an abrupt end today.  I am, of course, also interested to hear if everyone agrees with my views that (1) it is very likely that federal prosecutors will contend at sentencing that only an LWOP sentence is "sufficient" under 3553(a) for Abdulmutallab, and (2) pretty likely that Abdulmutallab will in fact get an LWOP sentence.

October 12, 2011 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Early reactions to the (too) quick House hearing on post-Booker sentencing

Less than two hours after it started, today's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired.  Without too much reflection, here are a few quick reactions:

1.  There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner

2.  Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject.  Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.

3.  The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.

4.  The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.

5.  A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.

6.  We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory.  I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.

I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.

Some recent related posts about the House hearing:

October 12, 2011 in Blakely in Legislatures, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (8) | TrackBack

"Should the USSC publish sentencing data for individual judges?"

The question in the title of this post is the provocative first question asked by Rep. Sandy Adams (R-FL), a former Deputy Sheriff, which references this blog and particularly this post reporting on comments by Judge Kopf endorsing judge-identifier data be released.  (She also alsked so very tough questions of Judge Saris concerning the high rate of downward variances in child porn cases.)  I wish she was also given more time to ask question of all the witnesses.

October 12, 2011 in Who Sentences | Permalink | Comments (4) | TrackBack

"Should sentences reflect the will of the public?"

The question in the title of this post is the provocative final question asked by Rep. Trey Gowdy (R-SC), a former federal prosecutors who has been, by far, the most impressive of the members of House Judiciary Committee asking questions this morning at the hearing to examine the post-Booker federal sentencing system.

In his tough questioning of USSC Chair Judge Patti Saris, Rep. Gowdy suggested he would favor having Congress "codify" the guidelines via statutes (which would, of course, require jury findings of all aggravating factors based on Apprendi/Blakely).  Rep. Gowdy also noted that some states have jury sentencing.  

I wish Rep. Gowdy would have a lot more time to ask questions and that all the witnesses were asked the question in the title of this post.

October 12, 2011 in Who Sentences | Permalink | Comments (4) | TrackBack

Webcast of House hearing on federal sentencing after Booker available

As reported in this prior post, this morning  the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry  [Update: Written testimony from the witnesses are now linked here].  I will do a little live-blogging as I follow along.

10:04:  Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines."  He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.

10:06:  Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing.  He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.

10:10 Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.

10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing.  She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system.  Chair Saris says USSC recommends these legislative changes by Congress:

  1. Congress should make reasonableness review tougher, especially for non-guideline sentences
  2. Congress should clarify statutory directives that are in tension
  3. Congress should clarify and codify that guidelines should be given substantial weight

Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.

10:26:  Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York.  He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing."  As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.

10:31:  William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery."  He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures.  He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."  

10:36:  James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act.  He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker.  Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.

I will cover follow-up Q & A in a separate post...

October 12, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

Florida legislator introduces bill to replace lethal injection with firing squad as execution method

This local story out of Florida, headlined "State Rep. files bill to add firing squad to death penalty laws," reports on a notable legislative reaction to litigation over lethal injection protocols. Here are excerpts:

State Rep. Brad Drake filed a bill Tuesday that would eliminate lethal injection as a method for execution in Florida.  Instead, people facing the death penalty would be allowed to choose execution by firing squad.  Electrocution still would be allowed under the bill [which is available here].

Drake, R-Eucheeanna, said in a news release issued Tuesday night [available here] that he filed the bill in response to debate over the effectiveness of certain drugs used in lethal injection executions.  “So, I say let’s end the debate,” he said in the release. “We still have Old Sparky. And if that doesn’t suit the criminal, then we will provide them a .45 caliber lead cocktail instead.”

In the release, Drake said the bill was in reaction to a group of doctors and legal experts who had been asking Gov. Rick Scott for a stay of execution for Manuel Valle, a 61-year-old man convicted of murder in the death of a law enforcement officer in Miami in 1978.

Valle was executed late last month after 33 years on death row. He was the first Florida inmate executed using pentobarbital as the first of three drugs in the injection.  His lawyers questioned the drug, saying it had not been tested for use to render an inmate unconscious.

“I am sick and tired of this sensitivity movement for criminals,” Drake said.  “Every time there is a warranted execution that is about to take place, some man or woman is standing on a corner holding a sign, yelling and screaming for humane treatment.  I have no desire to humanely respect those that are inhumane,” he said in the release.

Some recent and older related posts:

October 12, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (6) | TrackBack

"The Costs of Judging Judges by the Numbers"

The title of this post is the title of this relatively short paper by Marin Levy, Kate Stith and José Cabranes, which is available via SSRN. (Though not directly focused on judging judges based on sentencing numbers, I think it is telling and not too surprising that two of the authors of this paper have a long distinguished history of federal sentencing scholarship.)  Here is the abstract:

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models.  First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately.  The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade discussions of judging, and could, if taken seriously, detrimentally alter the behavior of judges themselves.

Especially because sentencing judges are (too?) often judged by the numbers of years of prison they impose on various offenders, I think this essay should be read by advocates of sentencing reforms.

October 12, 2011 in Who Sentences | Permalink | Comments (1) | TrackBack

SCOTUS adds capital Double Jeopardy case from Arkansas to its docket

As reported in this SCOTUSblog post, yesterday the Supreme Court granted cert on a case from Arkansas which coincerns "the scope of the Constitution’s ban on double jeopardy, when a jury has voted against a guilty verdict on a serious offense, but deadlocks on a lesser crime and prosecutors seek a retrial on the greater crime."  Here are the basics via Lyle Denniston's reporting:   

The [criminal justice] newly granted case was Blueford v. Arkansas (docket 10-1320). At the murder trial of Alex Blueford, the trial judge told the jury to consider capital murder and three lesser crimes — first-degree murder, manslaughter, and negligent homicide. It should not consider any of those, the judge said, unless it first agreed unanimously that Blueford was not guilty of a greater offense, in order of the seriousness of the offense. The forewoman announced in court that the jury had voted unanimously against capital murder and first-degree murder, and had deadlocked on manslaughter so it did not consider the negligent homicide charge, a more serious charge.   The judge granted a mistrial, rejecting defense lawyers’ plea to declare a partial verdict of acquittal on capital murder and first-degree murder.  When Blueford was retried, prosecutors pursued guilty verdicts on all of the prior charges.  The trial judge refused to dismiss the more serious charges, and Blueford then lost a pre-trial appeal to the Arkansas Supreme Court.  Lower courts are split on the double jeopardy question.

October 12, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

October 11, 2011

Witnesses identified for House hearing on post-Booker federal sentencing

As reported in this prior post, tomorrow morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and the witness list has now been published at this calender entry.  The prominent persons scheduled to testify should be well known to many readers of the blog:

The Honorable Patti B. Saris; Chair, United States Sentencing Commission

Mr. Matthew Miner; Partner, White & Case LLP

Mr. William Otis; Adjunct Professor, Georgetown Law

Mr. James E. Felman; Kynes, Markman & Felman, P.A.

As I have said before and will say again, I am extremelypleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC.   On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.

If my schedule permits and if the hearing is webcast, I may try to live blog at least parts of the festivities scheduled to take place tomorrow morning in the Rayburn House Office Building.  In addition, I welcome/encourage anyone who is involved with or who attends the hearing to send me any and all blog-friendly text or materials in conjunction with this (important?) congressional hearing on the federal sentencing system.

October 11, 2011 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (9) | TrackBack

Fourth Circuit provides 100 pages of ACCA's application to indecent liberties

If you cannot get enough of appellate litigation over intricate issues in the definition of a crime of violence under the federal Armed Career Criminal Act — and, really, who can? — then you are going to adore the work of the en banc Fourth Circuit today in US v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011) (available here). This summary of the disposition and the opinions in Vann provides a small taste of the fun the case potends:

Vacated and remanded by published opinion. A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority.  Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined.  Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan.  Judge Davis wrote a concurring opinion.  Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined.  Judge Wilkinson wrote an opinion concurring in the judgment.  Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

Got that?  As for the substance prompting all this opinion writing (totalling 100 pages), here is part of the start of the per curiam opinion from the Fourth Circuit majority:

On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun.  In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1).  On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March.

A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2).  If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment.  See § 924(e)(1). Vann’s presentence investigation report (the "PSR") reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the "Indecent Liberties Statute" or "Statute") that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement....

Vann objected to the district court’s application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR’s contention that his previous convictions were for ACCA violent felonies....

The district court rejected Vann’s characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(1)’s sentencing enhancement.  As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison....  A divided panel of this Court affirmed Vann’s sentence....  Upon granting Vann’s petition for rehearing en banc, we vacated the panel opinion.

October 11, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Another GOP debate, another chance to (fail to) discuss drug war and mass incarceration

Tonight brings another debate among the Republican presidential hopefuls, and this Washington Post entry sets up the basics:

For 90 minutes in New Hampshire tonight, eight Republican presidential hopefuls will sit around a wooden table and take shots at each other and President Obama.  The theme of The Washington Post/Bloomberg debate, which starts at 8 p.m, is the economy.   As Karen Tumulty, who will be one of the journalists asking questions, wrote, previous debates definitively shifted the momentum of the race.  And tonight’s debate will likely set off yet another a new phase.

This new Wall Street Journal commentary by Fred Barnes highlights how central these debates have become to the national political conversation, and that is why I will keep hoping and rooting for one of these many debates to explore with the candidates their views on the war on drugs and mass incarceration.  

The recent PBS documentary on America's experience with alcohol prohibition provided yet another reminder of the many ways in which criminalization of certain market transactions impact national and local economies, as well as federal and state government spending and tax revenues.  (The Prohibtion series mentioned, though did not discuss sufficiently, that those folks pushing for alcohol prohibition recognized they had to first push through a constitutional amendment authorizing a national income tax to make up for the federal tax revenue that would be lost once alcohol sales were banned.  Imaginging an alternative modern US politics and history if we did not have a national income tax is mind-boggling.)

As has been the case before, I am expecting to be disappointed by tonight's debate because I doubt we will get any focus on the drug war and mass incarceration despite the fact that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs.   Still, in the hope someone in charge of tonight's debate or future ones, let me repeat some of my favorite free-market-oriented questions about these topics that I would like to hear discussed by all the GOP hopefuls:

Some recent and older related posts:   

October 11, 2011 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (15) | TrackBack

Habeas, deportation and strip searches on SCOTUS docket this week

Despite a short work week, there is a good bit of criminal procedure on the SCOTUS docket as the Court closes out its October sitting.   Via SCOTUSblog, here are the basics:

10-637, Greene v. Fisher: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as clearly established Federal law under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

10-694, Judulang v. Holder: Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

10-945, Florence v. Board of Freeholders: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

October 11, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

October 10, 2011

Oklahoma using electronic monitoring to enable earlier prisoner releases

As detailed in this interesting local article, headlined "Hundreds of Oklahoma prisoners could be released Nov. 1," a notable sentencing reform plan incorporating technocorrections goes into effect this week in the Sooner State.  Here are the particulars (along with the usual expressions of concern from the tough-on-crime crowd):

Oklahoma corrections officials say they are preparing to put as many as 250 to 300 inmates in ankle monitors and release them. Prosecutors throughout the state are upset.

The inmates, convicted of nonviolent offenses, are set to be released starting Nov. 1. That is when a new law intended to relieve prison overcrowding goes into effect.  The law changes when certain nonviolent inmates become eligible for ankle monitors.

“I suspect that many — if not most — of the legislators that voted for this didn't realize it was going to have the result of releasing several hundred inmates on Nov. 1,” said Michael Fields, district attorney for Blaine, Canadian, Garfield, Grant and Kingfisher counties.

“I have a hard time believing that legislators understood that whenever they agreed to vote for this law,” Fields said.  “I doubt that would have been their intent because many of those legislators are our allies on public safety issues. I think that this clearly does undermine public safety.”

House Speaker Kris Steele, R-Shawnee, said the goal actually is to increase public safety. He said the change will put more low-risk, mostly female inmates into the successful electronic monitoring program so corrections officials can focus their limited resources on inmates who are truly threats to society....

Currently, in general, no nonviolent inmate is eligible for an ankle monitor until he gets down to the last 11 months of his sentence. Starting Nov. 1, offenders with sentences of five years or less become eligible once they have served 90 days, if no other restrictions apply.

Prosecutors said Friday public confidence in sentences will be undermined if quick releases start happening. “Then, I will stop sending people to prison for less than five years,” said Greg Mashburn, district attorney for Cleveland, Garvin and McClain counties. “I mean, I'll have no choice. If I intended them to go to prison, I intended them to stay for more than 90 days. I will absolutely adjust what I'm doing on my cases so this isn't happening.”

Mashburn said ankle monitors haven't worked well in his counties. He recalled three instances where offenders on ankle monitors committed crimes. “Ankle monitors, it's not the great answer. ... A lot of people think, ‘Well, if they're on an ankle monitor, we can stop them from committing crimes.' All we're going to be able do is know where they were when they were committing the crime,” Mashburn said.

Oklahoma County District Attorney David Prater said he worries whether the overburdened and underfunded Corrections Department will have enough officers to keep track of the hundreds of new inmates on ankle monitors. “It's almost impossible for them to adequately supervise even people on probation,” Prater said. “There's no way that the Department of Corrections has the capability to adequately supervise those prisoners on ankle monitors and assure the public that they will be kept safe.”

Corrections Department Director Justin Jones said few inmates will get ankle monitors after only 90 days. Most will need more time. “It would be the exception and not the rule,” Jones said. “Some needs are going to have to be addressed … before we put them into a re-entry program. … Rational behavior training, substance abuse, anger management, parenting skills, fatherhood skills, those kinds of things.”

Corrections officials originally came up with a list of 1,133 nonviolent offenders already serving sentences to be considered for ankle monitors because of the new law.

The original list included burglars, drug offenders, embezzlers, drunken drivers and thieves. Officials have been eliminating from that list inmates who do not qualify for ankle monitors for other reasons, such as they have no suitable residences where they can go.

Prosecutors say they have been told as many as 600 inmates will get ankle monitors Nov. 1. But the Corrections Department director said the list is now down to around 400 and will probably be cut down to 250 to 300.

“We consider it a very successful re-entry program,” Jones said. “And it is controlled. And it is custody because of the devices and the supervision by an officer.” The director said more than 90 percent of the females who get ankle monitors succeed and 86 percent of the males do....

About 450 convicts already are on ankle monitors, a Corrections Department spokesman said. Their movements are tracked by GPS.  The House speaker and Corrections Department director both said most of the inmates who will be getting ankle monitors Nov. 1 are already in halfway houses and other community correction centers. Steele said he understands more officers have been hired to track their movements. “I really do think it's much ado about nothing,” Steele said of prosecutors' concerns.

Whatever Oklahoma prosecutors might say say about what they think their state legislators did not realize, I suspect somebody behind this legislation concluded that it was more politically palatable than raising taxes to pay for more prison beds.  (I have long thought that if state sentencing reforms included an automatic increase in prosecutorial funding based on a percentage of savings that come from decreases in incarceration levels, prosecutors would not always have such a predictable reaction to sentencing reforms that result in some early releases.)

October 10, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Technocorrections, Who Sentences | Permalink | Comments (5) | TrackBack

"Obama: From First to Worst on Medical Marijuana"

MPP The title of this post is the headline of this commentary now appearing at the Huffington Post, which is authored by Rob Kampia, the Executive director of the Marijuana Policy Project.  Here are excerpts: 

During his run for the presidency, Barack Obama instilled hope in medical marijuana supporters by pledging to respect state laws on the matter.  And for the first two years of his term, he was generally faithful to his promise.  Yet suddenly, and with no logical explanation, over the past eight months he has become arguably the worst president in U.S. history regarding medical marijuana....

This past spring, Obama's U.S. attorneys in Arizona, California, Colorado, Hawaii, Montana, New Hampshire, Rhode Island, Vermont, and Washington state issued letters to local and state government officials at carefully chosen times, for the purpose of killing medical marijuana reform measures or hampering implementation in each state....

On September 21, Obama's ATF issued an open letter saying that gun shops cannot sell guns to medical marijuana patients -- or people who are known to be addicted to drugs other than alcohol or tobacco, ironically enough....

But there may be a way forward through this mess: Since Colorado, Maine, and New Mexico set up state-licensing systems for medical marijuana businesses in recent years, literally zero such businesses in these three states have been raided by the feds.

(All the raids we hear about -- in California, Michigan, Montana, and Washington state -- do not involve any state-licensed businesses.  At best, some of the targeted businesses were licensed by local governments in California under a loosely worded provision of California state law.)

Technically, federal prosecutors can civilly or criminally target any marijuana businesses they want -- in any state -- until we change federal law. But, for the time being, the feds appear not to be targeting medical marijuana businesses with state licenses.

It's worth noting that my organization has successfully enacted new laws that include state licensing in Arizona, Delaware, Rhode Island, and Vermont over the last two years.  (And D.C. and New Jersey have licensing systems, too.)

So we may have a way forward.  Unfortunately, the plan now assumes hostility from the former marijuana user in the White House who used to profess notions of hope, change, and compassion toward the less fortunate.  Shame on him.

This commentary reinforces my sense that the shrewd Republican 2012 candidate could get lots of (politically valuable) attention by just raising provocative questions about these latest anti-gun and anti-state moves by the Obama Justice Department in this area.  Such questions need not (yet) be in the form of a wholesale challenge to the war on drugs as articulated by Representative Ron Paul, but they could involve expressions of doubt about the focus on DOJ on these matters while violent crime rates continue to drop and economic frauds of all sorts continue to be of greater concern to the American people.

Of course, as detailed in this post from last year, House Republicans like Judiciary Committee Chair Lamar Smith have been giving the Obama Administration (seemingly unjustified) grief about being soft on the drug war.  I suspect and fear that the latest Obama DOJ surge in the war on pot has been prompted by these big-criminal-justice-government Republican criticism.  In turn, I suspect and fear that even those eager to brandish an outsider reputation among the GOP candidates will have the guts to attack this facet of big government under the Obama Administration.  But, until a GOP candidate other than Ron Paul questions the big-government drug war, I will be persistently suspicious of anyone who asserts they truly support a smaller federal government across the board.

Some recent and older related posts on the modern politics of the drug war:

October 10, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Georgia prosecutor in Troy Davis case comments on "doubt campaign"

Gerogia's legal newpaper, the Daily Report, has this notable new piece authored by Spencer Lawton, the lead prosecutor in the trial of Troy Davis, which is headlined "Prosecutor: Troy Davis appeals driven by 'doubt campaign' rather than truth."   Here is the start of the lengthy commentary:

As the lead prosecutor in the trial of Troy Davis, I can say that the case has been badly mismanaged by one of our most important institutions, one impressed with a profound public trust.  And while the criminal justice system isn't irretrievably broken, it is very badly damaged.  People are right to wonder how the system could put to death a man with so much doubt remaining.  How is this to be explained?

There are two Troy Davis cases.  Davis I was decided on the facts in courts of law, where he was fairly convicted and sentenced, and his appeals were denied.  Davis II is still under way as a public relations campaign where his innocence is proclaimed on the strength of a "doubt" that is manufactured and false, the overarching purpose being to defeat the death penalty.

The mantra has become "no physical evidence, and seven out of nine eyewitnesses recanted."  Neither is true.  There was physical (ballistic) evidence and persuasive circumstantial evidence.  Some of the so-called recantations weren't recantations at all, others were flatly unbelievable, and others were subsequently abandoned by the defense in a federal evidentiary hearing.

October 10, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

October 9, 2011

New AP article perpetuates notion (myth?) that federal sentencing is still about luck of the draw

This new AP article, which provides a partial preview of an upcoming high-profile white-collar federal sentencing, has a headline and a theme that suggests that luck of the judicial draw matters more than anything else in modern federals sentencing.  The piece is headlined "Sentencing is a wildcard in busy NYC courthouse," and here are excerpts:

The prison term awaiting a one-time billionaire hedge fund founder convicted of insider trading charges is unpredictable at best in a Manhattan courthouse where judges vary considerably in their assessment of how justice should be dispersed at sentencing.

Raj Rajaratnam, 54, is scheduled to be sentenced Thursday for his conviction at trial earlier this year.  If federal prosecutors have their way, he'll get between 19½ and 24½ years in prison for what they say were more than $72 million in profits for himself and his Galleon Group of hedge funds.  If defense lawyers are persuasive, he'll face between 6½ and 9 years for what they say was about $7 million in illegal profits.

Regardless of the outcome, his fate may have been decided when Judge Richard J. Holwell was selected to hear the case after the Sri Lanka-born Rajaratnam's October 2009 arrest.

"Welcome to the Southern District of New York," said Rita Glavin, a former federal prosecutor who leads the white-collar crime unit at the Manhattan law firm of Vinson & Elkins.   "The judge you are assigned to is critical," Glavin said.  "Having been on the prosecution side, there were certain judges from a government perspective you loved being in front of whether for trial, sentencing or evidentiary issues.  Now that I've moved to the defense side, it's not necessarily the same judges."...

The tone and result in sentencings have varied widely for those charged in the case against Rajaratnam and two dozen co-defendants, all of whom have been convicted, most as a result of guilty pleas.  Most of the sentencings have resulted in prison terms ranging from a few months to a few years.  Besides the sentencing guidelines, judges are supposed to take into account various other factors, including the defendant's personal history and the need to deter others from committing similar crimes.

The longest sentence handed down — 10 years — came from a stern Judge Richard Sullivan, who last month dispensed some finger-wagging words toward Zvi Goffer immediately after telling him that he viewed Goffer's sentencing as "a tragic day," not a day "for lecturing or finger wagging or table pounding."

He told Goffer that he had a gambler's mentality after his arrest. "You decided to double down and gamble on a trial," Sullivan said, adding that Goffer acknowledged his crimes post-trial.  "Had you made that acknowledgement before trial, you might have shaved almost three years off your guideline's sentence," he said as he gave him a sentence near the lower end of the guideline's range....  He added: "I am not saying you are going to be punished for going to trial, but there are consequences that flow from that.  You don't get the benefit of people who accept responsibility."

A few hours later, Winifred Jiau, 43, of Fremont, Calif., was sentenced to four years in prison after her conviction in an insider-trading probe that focused on Wall Street consultants who matched up public company employees willing to divulge secrets about earnings and mergers with hedge fund managers. The investigation was a spinoff of the Rajaratnam-Galleon probe.

Jiau received half the prison term recommended by sentencing guidelines from Judge Jed Rakoff, who had a different view of the effects of going to trial.   "I know judges vary.  It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said.  "There should be no price on going to trial."...

Annemarie McAvoy, a Fordham Law professor, said she learned as a young federal prosecutor in Brooklyn from 1989 to 1992 that the judge assigned to each case "makes a huge difference."

"There were clearly judges who were more favorable to the government.  They did longer sentences.  They didn't make it as easy for defendants," she said.  "And there were other judges always trying to do as much as they can for defendants and always trying to give them the lowest sentence they could.  That was luck of the draw."

October 9, 2011 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (21) | TrackBack

"Civilized society demands the death penalty"

The title of this post is the headline of this notable new commentary authored by a local pastor in Ohio providing a spirited and spiritual defense of the death penalty.   Here are excerpts:

There has been a lot of talk recently about Ohio's death penalty.  We have all heard the tired old arguments both for and against the death penalty.  In arguing the death penalty issue, people fight about whether it is a deterrent but that is not the issue.  Similarly, we argue about whether the death penalty is revenge or justice.  It usually is both, but again, we are missing the big issue.

The real issue about capital punishment is whether we value life or not.... I think we all could agree that you cannot put a dollar amount on one's life.  So what penalty for a person who intentionally takes an innocent life speaks to the value of the victim's life?... I find it chilling when one can intentionally take the life of another and the consequences are 10, 20, 30 years in prison.  I regularly preach in prisons here in Ohio, and I can tell you that one-third of the world's population would consider an American prison a step up from their current existence.

Now let's talk about why a civilized society demands the death penalty. The death penalty is not about vengeance.  If the law were about vengeance, then we would allow the victim's family to beat the inmate to death rather than give him a tranquilizer before we execute him.  The death penalty is not about deterring someone else from committing murder; otherwise we would hang the inmate in the town square and televise it for all to see.  

The death penalty is about putting the proper value on the life of the victim.  No, executing killers won't bring their victims back.  Yet, the death penalty says to our society that the only true price that can be asked for the life of the victim is the life of the perpetrator.  It says we value life so much that we can ask the ultimate price be paid for the ultimate crime committed.  To do less diminishes the value of the victim's life and thus diminishes all of our lives....

Perhaps if we were not so quick to look for excuses and more concerned about defending life, the death penalty could be applied more fairly and consistently.  Perhaps if we made the death penalty automatic for a murder conviction and allowed the jury (not a judge or prosecutor) to decide whether or not to commute the sentence to life without parole, we would not have to spend millions of dollars and decades of time to carry out this necessary, albeit, ugly form of punishment.

October 9, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack