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February 16, 2013

"Stakeholder Sentencing" from book exploring the import of public opinion on penal theory

I was intrigued and pleased to see this new paper on SSRN by UK scholar Thom Brooks, which is to be part of a forthcoming book exploring important (and under-theorized) topics concerning public opinion and sentencing policies. The forthcoming book is titled Popular Punishment: On the Normative Significance of Public Opinion for Penal Theory, and here is the abstract for the "Stakeholder Sentencing" chapter:

Recent years have witnessed increasing interest in how to provide new avenues for incorporating a greater public voice in sentencing. This development is the product of a widely perceived growing crisis concerning the lack of public confidence in sentencing decisions.  One important factor is negative media headlines that draw attention to cases that contribute to feeding a culture of sentencing disapproval by the public where punishments are believed to be undeservedly lenient.  A second factor is the recognition that victims should have greater involvement in the criminal justice system, including sentencing decisions.  But how might we improve public confidence and provide a greater voice for victims without sacrificing criminal justice in favour of mob rule?

These developments concerning the relation of public opinion and punishment raise several fundamental concerns.  How much voice, if any, should the public have regarding sentencing decisions?  Which institutional frameworks should be constructed to better incorporate public opinion without betraying our support for important penal principles and support for justice?

This chapter accepts the need to improve public confidence about sentencing through improving avenues for the public to posses a greater and better informed voice about sentencing decisions within clear parameters of justice.  I will defend the idea of stakeholder sentencing: those who have a stake in penal outcomes should determine how they are decided.  This idea supports an extension of restorative justice I will call punitive restoration where the achievement of restoration may include a more punitive element, including imprisonment.  My argument is that the idea of stakeholder sentencing offers a compelling view about public opinion might be better incorporated into sentencing that promotes a coherent and unified account of how punishment might pursue multiple penal goals, including improving public confidence in sentencing.

February 16, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3) | TrackBack

Missouri dealing with pipeline sentencing issues after state changes to crack law

Federal sentencing practioners are well aware of the multi-year legal debate over the application of the new crack sentencing rules in the Fair Sentencing Act to pending cases.  That legal debate culminated in the Supreme Court's Dorsey ruling last tear, and lower federal courts are still sorting through the consequences.  Now I see from this local article, headlined "Crack cocaine sentencing law at crossroads in St. Louis case," that the Missouri now has the same kind of issue percolating as a matter of state sentencing law. Here is how this lengthy piece get started:

Two grams of crack cocaine could cost Jackie Murphy a lot more time in prison than many other defendants with identical drug cases awaiting trial.  That’s because Murphy, of St. Louis, was charged before the Missouri legislature acted last summer to bring the penalties for possessing crack cocaine more in line with those for possessing powder cocaine.

St. Louis Circuit Attorney Jennifer Joyce’s office has taken the stance that the new legislation was not intended to apply to cases that were pending at the time — only to charges going forward.  That means that Murphy, if convicted, could face five to 15 years in prison for his alleged possession in January 2009 of two to eight grams of crack cocaine, under the Class B felony of trafficking.  Someone accused of the same conduct after August 2012 would face far less: one day to seven years for the lesser charge of possession, a Class C felony.

It’s a dichotomy that Murphy’s public defender, Richard Kroeger, is calling “utterly wrong” in a motion arguing for a dismissal of the charges.  He’s asking St. Louis Circuit Judge John Riley to follow the reasoning of the U.S. Supreme Court, which in June settled the same debate on the federal level.  It was about two Illinois men whose cases were charged but not yet adjudicated when the Fair Sentencing Act of 2010 was enacted.  The high court said the new law did apply to federal cases in the “pipeline.”

Joyce’s office opposes the motion, arguing that state law is clear and that the federal cases are a different matter.  The office declined to make anyone available this week to answer questions about it.  Riley is expected to issue a ruling as early as next week. 

Those who advocated for the legislation here are watching carefully, saying this could be the test case for how the new law is applied across the state. It was unclear how many pending cases might be affected, but lawyers said “a number” were on hold pending the outcome.

Under the old Missouri law, trafficking more than 150 grams but less than 450 grams of powder cocaine was treated the same as trafficking at least two grams but less than eight grams of crack.

According to a 2011 report from the Sentencing Project, a nonprofit advocate on criminal justice policies, Missouri’s 75-to-1 ratio for weight-based penalties on crack versus powder cocaine was the highest disparity in the nation.  It was adopted in 1989, according to the report, after a significant increase in cocaine-related deaths and at the tail end of a nationwide crack epidemic.  The old federal law had a 100-to-1 disparity.  Illinois, with no difference, was not mentioned in the report.

The Washington-based organization, and other advocates for equalizing crack and powder cocaine sentencing, argue that the old laws in Missouri and elsewhere are discriminatory because the heaviest penalties fell on minority and poor offenders, who have tended to choose crack.  And in the last decade or so, lawmakers have begun to agree. Missouri is one of five states, among 13 with disparities, that have since moved either to close the gap or eliminate it, according to the organization.

Nicole Porter, director of advocacy for the Sentencing Project, said she was not aware of any legislation that included provisions to be applied retroactively, or specified whether it would apply to pending cases.  Silence on the issue in the 2010 federal revision produced two years of uncertainty, until the U.S. Supreme Court issued its ruling in the consolidated cases of Dorsey v. United States and Hill v. United States.  Porter added that Murphy’s case was the first she’d heard of on the state level that asks the courts how the pipeline cases should be handled. “That litigation that is going on in Missouri is really new territory,” she said.

February 16, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5) | TrackBack

February 15, 2013

Sixth Circuit reverses one-week jail sentence for CEO as substantively unreasonable

Reversals of federal sentences on appeal as substantively unreasonable are pretty rare, which itself makes notable the Sixth Circuit's ruling today in US v. Peppel, No. 11-4327 (6th Cir. Feb. 15, 2013) (available here).  Add in that this is a white-collar case, and this reasonableness review story becomes even more noteworthy.  Here is how the Peppel opinion gets started:

Defendant-Appellee Michael Peppel, former President, CEO, and Chairman of the Board of Directors of MCSi, Inc. (“MCSi”), conspired with CFO Ira Stanley to falsify MCSi accounting records and financial statements in order to conceal the actual earnings from shareholders, while at the same time laundering proceeds from the sale of his own shares in a public stock offering.  For this conduct, the sentencing guidelines provided a sentencing range of 97–121 months’ imprisonment.  The district court, based almost solely on its estimation of Peppel as “a remarkably good man,” varied downward drastically from this advisory range, imposing a custodial sentence of only seven days — a 99.9975% reduction.  R. 224 (Sentencing Tr. at 86:10) (Page ID #2433).  Plaintiff-Appellant the government appeals the substantive reasonableness of the seven-day sentence, arguing that a seven-day sentence does not adequately reflect the seriousness of the offense, serve the goal of general deterrence, or avoid national sentencing disparities, and that the district court placed disproportionate weight on disfavored factors.  Peppel contests the government’s arguments and proffers a conditional cross-appeal, contending that the district court erred in its amount-of-loss and number-of-victims calculations that formed the basis of two sentencing enhancements.

We conclude that the district court abused its discretion by imposing an unreasonably low seven-day sentence, but did not err in calculating the amount of loss or number of victims.  We therefore VACATE Peppel’s sentence and REMAND for resentencing consistent with this opinion.

February 15, 2013 in Booker in the Circuits, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

EDNY federal judge sentencing mobsters to do Sandy-storm community service

Though the title of this post might sound like a headline from The Onion, it is in fact a reasonable summary of this story out of Brooklyn as reported by the New York Daily News and sent my way by a helpful reader. Here are the details:

There’s more help on the way to Hurricane Sandy victims -- from the mob.  A reputed Gambino associate convicted of extortion was sentenced Thursday to no jail time and 200 hours of community service related to the superstorm. He faced up to two years in prison.

Thomas Frangiapane is the second reputed mobster that Brooklyn Federal Judge Dora Irizarry has ordered to help with recovery efforts as part of their sentence.

Last month the judge sentenced reputed Gambino associate, Emmanuel Garofalo, to 300 hours of community service to repairing storm damage in his beachfront community of Sea Gate, Brooklyn.  Frangiapane and Garofalo both work in the construction industry.

Irizarry did not specify where or how Frangiapane should dedicate his efforts, but Sea Gate would be off-limits because he is barred from associating with Garofalo.

In seeking a lenient sentence, Frangiapane did not raise Hurricane Sandy relief - he argued that putting him jail would jeopardize the jobs of 75 workers he supervises at DeGraw Construction Group.

Assistant U.S. Attorney Whitman Knapp objected, pointing out that Frangiapane pleaded guilty to threatening to shut down the construction of a Brooklyn condo being developed by Sitt Asset Management, which jeopardized the jobs of those workers.

Long-time readers know I am a fan of creative sentencing options, especially when I think they can serve diverse values without compromising community service.  Consequently, I am inclined to praise Judge Irizarry's creativity here.  But perhaps others might think this approach to sentencing in this setting is a bit too creative.

February 15, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Ohio execution process under review as drug procurement issues create new looming problems

Drc_logo_smallI have been strongly disinclined to blog at all about any aspects of my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some very interesting news presented at yesterday's public meeting of the Task Force which I thought important to cover in this space.  Part of the story is revealed via this AP article headlined "Ohio wants doctors at executions":

Ohio's prison agency says it wants doctors or other medical professionals to assist with executions, saying it will help promote humane procedures.   Prisons attorney Greg Trout also says state law should be changed to protect any doctor who helps with an execution from sanctions by the state medical board.  Trout said that assistance from a doctor or nurse is unlikely without such protection.

Trout also told a state Supreme Court committee reviewing Ohio's death penalty law that protection should be offered pharmacies that mix supplies of execution drugs.

Trout said in remarks Thursday that without such protection Ohio might not be able to obtain drugs to carry out future executions. The state's current supply of its execution drug runs out in September.

The Ohio DP Task Force has been spending its time and energies considering only the law and practices for the imposition and review of death sentences and had not, before yesterday, given any attention to the actual execution process.  I thought this was a sensible decision given (1) the extensive (and, I believe, still on-going) federal litigation over Ohio's execution protocols, and (2) my belief that Ohio was among the few states without major problems procuring the drugs needed to carry out executions.

But the comments by Greg Trout at the public Ohio DP Task Force meeting yesterday made clear that, as of this writing, Ohio is only going to be able to use its current drug supply to carry out, at most, the four executions scheduled before the end of September 2013 (details here); some other execution plans are going to be needed for the state to be able to carry out the nine subsequent scheduled executions.

Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated. In other words, stay tuned while dusting off your post-Baze litigation files.

Some related posts concerning Ohio's most recent lethal injection litigation: 

February 15, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (7) | TrackBack

Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

The Wall Street Journal has a pair of new pieces based on the US Sentencing Commission's recently released Booker report.  This main one has this provocative headline "Racial Gap in Men's Sentencing," and here are excerpts:

Prison sentences of black men were nearly 20% longer than those of white men for similar crimes in recent years, an analysis by the U.S. Sentencing Commission found.   That racial gap has widened since the Supreme Court restored judicial discretion in sentencing in 2005, according to the Sentencing Commission's findings, which were submitted to Congress last month and released publicly this week.

In its report, the commission recommended that federal judges give sentencing guidelines more weight, and that appeals courts more closely scrutinize sentences that fall beyond them.

The commission, which is part of the judicial branch, was careful to avoid the implication of racism among federal judges, acknowledging that they "make sentencing decisions based on many legitimate considerations that are not or cannot be measured."

Still, the findings drew criticism from advocacy groups and researchers, who said the commission's focus on the very end of the criminal-justice process ignored possible bias at earlier stages, such as when a person is arrested and charged, or enters into a plea deal with prosecutors.

"They've only got data on this final slice of the process, but they are still missing crucial parts of the criminal-justice process," said Sonja Starr, a law professor at the University of Michigan, who has analyzed sentencing and arrest data and found no marked increase in racial disparity since 2005....

In the two years after the Booker ruling, sentences of blacks were on average 15.2% longer than the sentences of similarly situated whites, according to the Sentencing Commission report.  Between December 2007 and September 2011, the most recent period covered in the report, sentences of black males were 19.5% longer than those for whites. The analysis also found that black males were 25% less likely than whites in the same period to receive a sentence below the guidelines' range.

The Sentencing Commission released a similar report in 2010. Researchers criticized its analysis for including sentences of probation, which they argued amplified the demographic differences.

In the new study, the Sentencing Commission conducted a separate analysis that excluded sentences of probation.  It yielded the same pattern, but the racial disparity was less pronounced. Sentences of black males were 14.5% longer than whites, rather than nearly 20%.

Jeff Ulmer, a sociology professor at Pennsylvania State University, described the commission's latest report as an improvement but said it was "a long way from proving that [judicial discretion] has caused greater black-white federal sentencing disparity."

For reasons that will be obvious if you click through to the story, I especially enjoyed this companion piece appearing at the WSJ Law Blog under the headline "After 'Anonymous' Attack, Sentencing Body Seeks Blogger's Help."

Recent related post:

February 15, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1) | TrackBack

February 14, 2013

Notable account of capital realities when death penalty is truly rare

In California and some other states, various challenges presented by the administration of the death penalty might be traced to the fact that there are too many capital cases and not sufficient human resources to deal with them all soundly.  This new AP story from New Hampshire, in contrast, discusses challenges presented by having so very few capiral cases.  The piece is headlined "NH officials discuss the prospect of execution," and here is how it starts:

New Hampshire — which last executed an inmate more than 70 years ago, by hanging — would likely carry out an execution in a prison gymnasium rather than construct a costly death chamber for its lone death row prisoner, Corrections Commissioner William Wren said Wednesday.

Addressing a symposium on the death penalty at the University of New Hampshire School of Law, Wren said he and his staff are ‘‘dusting off’’ execution protocols from the 1930s but the $1.8 million needed to build a lethal injection chamber isn’t in the cards in a state where inmates are so rarely condemned to death.

The symposium offered a rare, behind-the-scenes look at the case of Michael Addison, sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs following a violent crime spree. If the state’s highest court upholds his conviction and death sentence, Addison could be the first convict executed in New Hampshire since 1939.

Wren said Addison doesn’t really live on "death row" because the state no longer has one. He is housed in the state prison’s maximum security unit, living alongside other convicts.

The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.

Panelists made it clear Addison’s case threw a curve at a state criminal justice system that had no modern-day experience with capital litigation.

Attorney Chris Keating, who supervised Addison’s defense, said there was no legal "infrastructure" in place for a death penalty case — no bank of motions built from other cases, no expertise and a severe dearth of resources to handle the astronomical costs of such a case. He likened it to being told to build a nuclear bomb for the first time. "The stakes are really high if I get it wrong," he said.

Keating said he and former Attorney General Kelly Ayotte had to approach the Executive Council to fund their case. "The difference was, Ayotte was welcomed and people were very anxious to provide her with the funding necessary," Keating said. "I had to sheepishly ask for my $137,000 for initial spending."

February 14, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Second Circuit finds repeat resentencing procedurally unreasonable

An interesting reasonableness review decision was handed down by a Second Circuit panel this morning in US v. Desnoyers, No. 11-5194 (2d Cir. Feb. 14, 2012) (available here).  It should be of special interest to anyone involved in resentencing proceedings in federal courts.  Here is how the opinion starts and concludes:
The United States takes this appeal from the sentence imposed following our reinstatement of a count of conviction dismissed by the district court under Federal Rule of Criminal Procedure 29.  The re-sentencing has resulted in imposition of the same term of probation and an increase in restitution of about $10,000.

Desnoyers was convicted by a jury in the United States District Court for the Northern District of New York (Hurd, J.) of offenses arising from his malfeasance as an air monitor for asbestos abatement projects in and around Plattsburgh, New York.  The grant of Desnoyers’s post-trial motion to vacate Count I -- the conspiracy charge -- left four substantive violations.

On the government’s initial appeal, we reinstated the jury verdict, and remanded for re-sentencing.  United States v. Desnoyers (“Desnoyers I”), 637 F.3d 105, 112 (2d Cir. 2011).

On remand, the district court imposed the same five-year term of probation and increased the restitution amount to $45,398.  The government now attacks the procedural and substantive reasonableness of the sentence, arguing mainly that the district court improperly excluded new evidence that was not submitted at the initial sentencing. The government also contests the restitution calculation.

For the reasons that follow, we conclude that the sentence was procedurally unreasonable; we therefore vacate and remand to the district court for re-sentencing....

For the foregoing reasons, we AFFIRM in part and VACATE and REMAND in part. We AFFIRM the following: (1) the district court’s refusal to consider newly submitted evidence relating to Counts V and VI; and (2) the district court’s refusal to consider the newly submitted character evidence.  We VACATE the district court’s judgment on the following issues and REMAND for re-sentencing in accordance with this opinion: (1) the district court’s refusal to include the Page Estimate in the loss amount for Count I; (2) the district court’s failure to consider the organizer enhancement at re-sentencing; (3) the district court’s refusal to include payments for pre-abatement sampling and durings in its restitution calculation; and (4) the district court’s entire restitution calculation for Count I.

February 14, 2013 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Are "pink-collar" crimes distinctive calling for distinct sentencing policies and practices?

The question in the title of this post is prompted by this intriguing new commentary by Kelly Richmond Pope at The Daily Beast, which previews a high-profile white-collar federal sentencing scheduled for today in Illinois. The piece is headlined, "Most Notorious ‘Pink-Collar’ Criminal to Be Sentenced for $53 Million Theft: Crundwell may be the most brazen of recent female embezzlers, but she’s not alone, as more and more women achieve positions of power, as well as access to funds."  Here are excerpts (with a few links preserved):

On Valentine’s Day, Rita Crundwell will be sentenced for her role in the largest municipal fraud in U.S. history.   Once known as one of the leading American quarter horse breeders, Crundwell embezzled more than $53 million from the town of Dixon, Illinois, which has a population of 16,000 and an annual budget between $6 and $8 million.  Crundwell, who was Dixon’s comptroller, carried on her scheme for 20 years, but it was discovered only when a Dixon city clerk opened a letter revealing that Crundwell had set up a secret bank account and was embezzling city monies to finance her lavish lifestyle.

While Dixon was cutting jobs, battling a budget deficit, and struggling to complete capital improvement projects, Crundwell was throwing epic birthday parties, building ranches and traveling the world.  According to court records, she stole an average of more than $37,000 for every day she worked for Dixon.

Some people are shocked to hear that a woman was at the center of such a vast scheme, but women in fact tend to be pretty savvy embezzlers. In fact, with more women taking on leadership positions in corporate America, an unexpected phenomenon has begun to emerge: pink-collar crime.

It’s never been a popular topic. In 1975 Rutgers criminologist Freda Adler wrote a groundbreaking yet controversial book, Sisters in Crime: The Rise of the New Female Criminal, that shed light on research analyzing the criminality of women. But in the era of the Equal Rights Amendment, Adler took a ton of heat, as critics believed her book undermined the feminist movement and distorted the facts about the female crime rate. But was Adler wrong?  I would argue she wasn’t.

Pink-collar crime is unquestionably on the ascent.  The term generally refers to the rise of women involved in white-collar crime, but it’s also a theory introduced by criminology professor Kathleen Daly during the 1980s to describe the types of embezzlement crimes typically committed by females.  Based on my research as a forensic accountant and fraud investigator, I’ve watched this trend swell over the years.

While perhaps no pink-col lar crime has been as scandalous as Crundwell’s, she is far from alone. In fact, according to the 2011 Marquet Report on Embezzlement, women are more likely to embezzle than men.  Based on a review of 473 major embezzlement cases in the United States in 2011 alone, nearly two thirds of the cases involved female perpetrators. Among the top 10 cases, five involved “pink-collar criminals” who pocketed anywhere from $4.8 to $16 million.

Before Crundwell, the largest municipal fraud was also an embezzlement case committed by a woman named Harriette Walters.  Walters was convicted of embezzling $48 million over 20 years in her role as a tax-assessment manager for the District of Columbia.  She is currently serving a 16 1/2-year sentence in a West Virginia federal prison.

So why is women’s stealing on the rise?  To help answer this question, I spoke with Kelly Paxton, a licensed private investigator and president of Denver-based Financial Caseworks LLC.  Paxton told me that the increase is due to both greater “perceived needs,” such as material goods, as well as more women being in positions where they have access to funds.

That observation is supported by my conversation with Diann Cattani, whom I interviewed for my documentary “Crossing the Line: Ordinary People Committing Extraordinary Crimes.”  Cattani, who served 18 months in prison for stealing $500,000, felt the need to provide more material possessions for her family in hopes that it would mend some personal issues within her marriage.  But the stigma of being a convicted felon ended up destroying her marriage, and continues to challenge both her personal and professional lives.

Maintaining a lavish lifestyle is a commonly cited rationale for committing white- or pink-collar crimes.  For Crundwell, it appeared to be her top priority. According to court documents, Crundwell first embezzled $181,000 in 1991, which she used to purchase a Suncruiser Pontoon boat and $3,000 worth of diamonds. The theft continued in 1992, when she pocketed $121,000, more than two thirds of which she used to pay off her credit card. In 1999 Crundwell pocketed more than $1 million, using $125,000 to purchase a horse. Even as the recession set in, Crundwell continued to use Dixon as her personal piggy bank, embezzling millions of dollars more....

In 1990 Freda Adler told the Wall Street Journal, "as more women are out in the mainstream, the more mainstream activities they are going to be involved in." We can only imagine what she would have to say about Rita Crundwell.

Recent related post on Crundwell case:

UPDATE:  The headline of this Chicago Tribune piece reports on the sentencing outcome today for Rita Crundwell: "Ex-Dixon comptroller gets 19.5 years for $54 million fraud".

February 14, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (7) | TrackBack

"Reluctance to Resentence: Courts, Congress, and Collateral Review"

The title of this post of the title of a notable article by Sarah French Russell, which I believe just showed up in print by is still available here via SSRN.  Here is the abstract:

In a series of recent decisions, the Supreme Court overturned a number of circuit court opinions and adopted a more narrow reading of certain federal recidivist sentencing enhancements.  Although the decisions revealed that many federal prisoners were sentenced incorrectly and are serving sentences that are much longer than they should be, few of these prisoners have obtained relief in the lower courts on collateral review.  Courts have generally dismissed the claims on procedural grounds, citing interests in finality. Indeed, courts often refuse to correct sentencing errors on collateral review, even when both the judge and the prosecutor acknowledge that the prisoner is serving additional years in prison based on a sentencing mistake.  After a criminal judgment has become “final,” federal courts appear reluctant to resentence.

Federal prisoners seeking collateral review of sentences are subject to the same — and in some cases stricter — procedural barriers to relief as those seeking the more drastic remedy of undoing their convictions.  But sentencing errors should be easier to fix than conviction-based errors because arguments favoring finality are much weaker in the sentencing context.  Correcting a sentence is vastly easier than retrying a case, and staleness of evidence is not a major concern at a resentencing because judges, unlike juries, can rely on previous findings.  Outside the special context of capital cases, the important distinctions between collateral review of sentences and convictions have received little attention from courts or scholars.

Given the backdrop of extensive litigation in the lower courts about correcting sentencing errors at the collateral review stage, and the possibility that the Supreme Court will need to resolve divergent circuit decisions in this area, now is an important moment to consider whether interests in finality should carry as much weight when a court reviews a sentence rather than a conviction in a collateral proceeding, and when the federal court is reviewing its own decision rather than the decision of a state court.  Courts have been overstating the interests in finality of sentences.  They should be correcting more sentencing mistakes on collateral review, at least where an intervening decision has narrowed the reach of a substantive sentencing provision.

February 14, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

February 13, 2013

Has DOJ responded (and/or has anyone seen any response) to House members' questions about Swartz prosecution?

As reported in this prior post a few weeks ago, the leaders of the US House of Representatives' Oversight and Government Reform Committee — via this letter to Attorney General Eric Holder dated Jan 28, 2013 —asked a whole bunch of tough questions of the Justice Department concerning the federal prosecution of on-line activist Aaron Swartz.  As highlighted in that post, the detailed three-page letter from Chairman Darrell Issa and ranking member Elijah Cummings included important questions concerning what "plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz" and concerning what "factors influences the Department's decisions regarding sentencing proposals."  This letter specifically asked for a briefing on these matters from DOJ officials no later than Monday Feb. 4, 2013.

It is, of course, now well over a week since Feb 4, and I have not seen nor heard any information concerning any official (or unofficial) substantive responses from the Justice Department to any of the questions House members raised via this letter.  Given all the media attention that swirled around this matter before, I am surprised this investigation by House members has not garnered additional attention.

A bit of research did reveal this local Boston Globe story dated February which reports on a possible "private briefing" which, for me, raised more questions than it answered:

Criticism of Swartz’s prosecution has led the House Committee on Oversight and Government Reform to open an inquiry about the case. The panel is seeking answers from the Department of Justice regarding the severity of Swartz’s proposed punishment, and whether his activism affected his prosecution. Justice officials could provide a private briefing for committee members as soon as next week, House aides said....

The Department of Justice’s agreement to brief the House committee came a week after Issa and ranking Democrat Elijah Cummings sent a joint inquiry requesting information about the case.  Swartz was originally indicted in 2011 on four felony charges, according to their letter, but a superceding indictment in September upped that number to 13. The final tally was punishable by up to $1 million in fines along with time behind bars, though Swartz would have faced only seven to eight months in prison if he had taken a plea deal.

Representatives John Tierney of Salem and Stephen Lynch of Boston, who sit on the House Oversight Committee, were not available for comment, according to their offices. Warren’s office also said she was not available for an interview. The US attorney’s office in Massachusetts referred questions to the Department of Justice, where officials also declined to comment. The Justice Department would not say whether Ortiz would participate in the House briefing or whether the agency is conducting an internal investigation.

I think there is more than just a little irony to the fact that apparently a House Oversight and Government Reform Committee is apparently content to get a "private" briefing about this matter and nobody is commenting (or now reporting on) whether this meeting has taken place and/or whether and how any oversight is being exercises on these important fronts.  I am very dinsinclined to start looking for a bunch of black helicopters, but I must admit that government conspiracy types sure could now start working on a new chapter of cover-up theories in this case.

Some recent related posts:

UPDATEVia How Appealing, I see that there is a now this new article in Roll Call on this front headlined "Congress: Is Computer Law Too Tough on Hackers?". Here are excerpts which discuss sentencing issues and the (mysterious?) DOJ briefing apparently still in the works:

For years, law enforcement officials and prosecutors have lobbied Congress to up the penalties for hacking and other computer crimes, repeatedly invoking the argument that hackers are increasingly working with, or are sponsored by, organized crime or foreign states, and aren’t simply smart kids showing off in their parents’ basements.  “There has been a sense in Congress that ratcheting up the penalties on criminal laws was an easy giveaway to DOJ to get something they wanted,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, an Internet freedom group.

But now some lawmakers are suggesting that prosecutors — and perhaps Congress — may have overreached, and they are taking a new look at the Computer Fraud and Abuse Act.

“The crime and the punishment did not fit” for Swartz, House Oversight and Government Reform Chairman Darrell Issa, R-Calif., said at the memorial.  “This wasn’t a big case.” Rep. Alan Grayson, D-Fla., declared that “prosecution should not be persecution,” while Sen. Ron Wyden, D-Ore., blamed a “poorly written criminal law” for labeling Swartz a dangerous criminal.

Critics of the Computer Fraud and Abuse Act argue that the statute has several problems ... [including that] the penalty scheme for CFAA imposes almost entirely felonies, according to Cohn, with little room for misdemeanors. Cohn said prosecutors were only able to threaten Swartz with so much jail time because the CFAA penalties are out of proportion with the actual offenses; she argued that the lawmakers who approved such penalties could have hardly expected that they would be used as they were against Swartz.

Congress has seen previous attempts to clarify the law, including an amendment last year from Senate Judiciary ranking member Charles E. Grassley, R-Iowa, and Sen. Al Franken, D-Minn., that would have altered the terms of service portion.  The latest effort comes after Swartz’s death and has been dubbed “Aaron’s law” by Wyden and Rep. Zoe Lofgren, D-Calif....

But the draft of Aaron’s law still doesn’t address the issue of penalties, and its future remains cloudy. House Judiciary Chairman Robert W. Goodlatte, R-Va., said his committee is looking into the issue but called it premature to promise a hearing; a Senate Judiciary Committee spokesman indicated that panel has no plans to take up changes to the CFAA.

That leaves the House Oversight and Government Reform Committee, where Issa and ranking member Elijah E. Cummings, D-Md., have requested a briefing from the Justice Department on its prosecution of Swartz.  The briefing is expected in the coming days, after which committee leaders will have a better idea of how to proceed. Senate Minority Whip John Cornyn, R-Texas, has also written to Attorney General Eric H. Holder Jr. regarding the Swartz prosecution, which is now inextricably linked to the broader issue of how computer crimes are prosecuted.

The Justice Department has already pushed back against the notion it persecuted Swartz, with Ortiz releasing a statement last month defending her office’s conduct.  Ortiz claims that prosecutors sought a sentence of six months and denies ever telling Swartz’s attorneys they intended to seek maximum penalties under the law.  “The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct — while a violation of the law — did not warrant the severe punishments authorized by Congress and called for by the sentencing guidelines in appropriate cases,” Ortiz said.

February 13, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14) | TrackBack

Notable commentary on "Christopher Dorner and the California Death Penalty"

Noted legal commentatory Jeffrey Toobin has this notable new commentary at The New Yorker on a high-profile murder case that seems to have resolved itself in the state with a highly-dysfunctional capital punishment system.  Here are excerpts:

At this moment, it looks like Christopher Dorner, the ex-L.A.P.D. officer who’s been terrorizing Southern California for the past week, died on Tuesday in a confrontation with his pursuers.  A San Bernardino deputy sheriff was also killed; Dorner has already been charged with the murder of another officer, and is alleged to have killed two other people. In a lengthy post on Facebook last week, Dorner said that the motive for his rampage was an unjust dismissal from the L.A.P.D. several years ago.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system — the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds — a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed....

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts.  This has created a huge backlog at the state’s highest court.  Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006.  That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different.  The finality of capital punishment requires special safeguards against errors in the judicial process.  But if a state takes those safeguards seriously, as California does, the process can become never-ending.  Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain.  And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed.  All of this leads to delay.

And to enormous expense: many studies have shown that the death penalty is far more costly to taxpayers than a maximum sentence of life in prison without the possibility of parole....

If Dorner is dead, few will mourn him.  But anyone who has thought that his murderous spree — or the next spectacular California crime — would lead to a restoration of executions is very much mistaken.  The death penalty is already over in California in fact; it may take a little while longer to be gone in law, too.

I suspect lots of different readers will have lots of different reactions to this commentary (including to some of the more abolitionist-leaning sections I have not reprinted above).   Ever the iconoclast, I will make the point that the Dorner case provides another great example, in my view, of the kind of  "national" mass murder case which could and should be prosecuted (exclusively?) in federal court if he were still alive and responsible officials decided his case should be subject to a capital charge.

Recent and older related posts on use of the federal death penalty:

February 13, 2013 in Death Penalty Reforms, Offense Characteristics, Who Sentences | Permalink | Comments (24) | TrackBack

"Prosecutorial Discretion under Resource Constraints: Budget Allocations and Local Death Charging Decisions"

The title of this post is the title of this new empirical paper recently posted on SSRN and authored by Greg Goelzhauser. Here is the abstract:

Do prosecutorial resource constraints influence death-charging decisions?  Prosecutors typically contend that death-charging decisions are made independent of budget considerations, and the limited empirical evidence supports this view.  Using new data on death-charging decisions from 301 prosecutorial districts across 34 states, the results presented here suggest that the conventional wisdom is wrong.  The probability of facing a death charge is higher in prosecutorial districts with larger budgets.  The results inform our understanding of the politics of prosecutorial behavior and the policy debate over capital punishment.

February 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Hawaii house extinguishes bill proposing full legalization of marijuana

There had been some notable buzz that Hawaii could become the first state with a legislative body voting to legalize recreational marijuana (as opposed to the voter iniatives which brought legal reform in Colorado and Washington).  But, as this AP article reports, a "bill that would have legalized marijuana in Hawaii has died in the state House."  Here is why and the surrounding debate:

House judiciary committee Chairman Karl Rhoads said Tuesday that he decided to kill the bill after learning from House leadership that the initiative does not have enough votes to pass the House. Key lawmakers in the Democratic-controlled House supported the measure, including the speaker and the majority leader.

Pamela Lichty, head of the Hawaii Drug Policy Action Group, says the organization is disappointed with the outcome but will continue to advocate for marijuana decriminalization through other measures. She says that the fact that there were more than 20 marijuana-related bills introduced this year is a sign of public support for the initiative. She says the organization plans to continue to advocate for bills related to medical marijuana, which is legal in Hawaii.

The proposal that failed Tuesday would have legalized marijuana for recreational use for people aged 21 or older. It can’t be revived until future sessions. The initiative ignited an outpouring of public testimony that reflected sharply divided public opinion.

At a public hearing on the bill, law enforcement officials told Hawaii lawmakers that marijuana is a dangerous drug. They said the societal costs of legalizing weed aren’t worth the risks of allowing marijuana culture to proliferate. Opponents of the bill included the state attorney general, the county police departments and the Coalition for a Drug-Free Hawaii.

Numerous community members voiced opinions in favor of legalization, including the American Civil Liberties Union of Hawaii. Proponents said the move would conserve state resources and respect residents’ freedom of choice. They said the state’s current law against marijuana disproportionately impacts Native Hawaiians and other minority groups.

February 13, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1) | TrackBack

February 12, 2013

"How Crazy Is Too Crazy to Be Executed?"

The question in the title of this post is the main headline of this new Mother Jones essay authored by capital defense attorney Marc Bookman.  The lengthy piece carries this summary subheadline: "The voices told Andre Thomas to gouge out his eyes. But even that hasn't convinced the state of Texas to reconsider his death sentence." 

This companion piece, also authored by Marc Bookman, is headlined " 13 Men Condemned to Die Despite Severe Mental Illness: If juveniles and intellectually disabled people are ineligible for execution, why not paranoid schizophrenics?".  Here is how that piece gets started as an introduction to summaries of 13 capital cases involving defendants with severe mental illness:

Just how crazy must a person be to be ruled incompetent for execution in the United States?  Being profoundly mentally ill is not enough. You have to be deemed legally "insane."  At trial, the insanity defense generally hinges on a person's inability to distinguish right from wrong or understand the "nature and quality" of his act.  In the context of an impending execution, insanity means you cannot rationally comprehend that you are being put to death as a consequence of the crime you committed.

In 2005, a Texas jury found that Andre Thomas, the subject of my in-depth companion piece (see box below), was not insane at the time of his crime.  To put this in context, consider that Thomas was then, and still is, a delusional paranoid schizophrenic who hears voices — from God, he believes — telling him to do things.  He carved out the organs of his four-year-old son, his estranged wife, and her 13-month-old daughter, and took them home in his pockets, believing that this would kill the demons inside them.  In the days following his arrest, he insisted to a jailhouse nurse that his victims were still alive.

And that's not even the weirdest part of the story.  Thomas' case is on appeal in federal court, and as it stands, the courts cannot even address the question of whether he is competent to be executed until he is about to be.  But should someone as obviously crazy as Andre Thomas be facing execution at all?  Over the past decade, US courts have barred the death penalty for the intellectually disabled and for juveniles — the Supreme Court found that they have less culpability due to their lower mental functioning and immaturity. Many legal observers believe that barring the death penalty for the severely mentally ill, given their dissociation from reality, is the next frontier in capital jurisprudence.

Over the years, governors from both parties have seen fit to commute the death sentences of profoundly mentally ill prisoners, even in conservative states. But authorities in Texas have shown little mercy: The state Board of Pardons and Paroles has recommended clemency based on mental illness in only one case since 1977, when the death penalty came back into use (see Kelsey Patterson below) — and Gov. Rick Perry denied it.

February 12, 2013 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (22) | TrackBack

DC Circuit works hard to figure out just what Freeman means for guideline retroactivity

An informed and thoughtful reader recommended to me today's interesting rulng by a DC Circuit panel in US v. Epps, No. 11-3002 (DC Cir. Feb 12, 2013) (available here).  The Epps court, in a setting which one judge thought make the case moot, has to unpack the SCOTUS Freeman decision concerning plea agreements and guideline retroactivity. Among other interesting aspects of the case, the panel unpacks the important issue of which SCOTUS opinion controls when the Justices divide 4-1-4 . Here is how the Epps opinion gets started:

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant’s sentence under 18 U.S.C. § 3582(c)(2) where the defendant entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).  The decision was splintered, however, with the plurality and concurring opinions adopting different reasoning. Prior to Freeman, the district court denied Ricardo Epps’ § 3582(c)(2) motion for a reduction of his Rule 11(c)(1)(C) sentence.  United States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010).  Epps appeals, contending that there is no controlling opinion in Freeman and that because the district court (as well as the Rule 11(c)(1)(C) agreement) relied upon the crack-cocaine Guidelines range when determining whether to accept the stipulated sentence, his sentence was imposed “based on” the Guidelines range and the district court was authorized under § 3582(c)(2) to reconsider and reduce his sentence in light of the Sentencing Commission’s reduction of the sentencing range applicable to him.  For the following reasons, we reverse and remand the case to the district court.

February 12, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"Just Prisons: What Would Jesus Do?"

The title of this post is the headline of this lengthy commentary at The Huffington Post authored by Ron Nikkel, who is the President and CEO of Prison Fellowship International. The piece provides a critical religious and international perspective on incarceration and here is an excerpt:

Many people simply take prisons for granted, accepting them as a fact of life for a safe society or at worst being somewhat of a necessary "evil" for justice to be served.  The history of prisons is checkered with jails and prisons being used both as unjust instruments of political, social, economic, and ironically religious coercion and control; and in other times and places being used as a rather blunt instrument deemed to serve the course of justice.  However, the more I have studied the impact of prisons on the lives of people, the more I see prisons as one of the most confusing, irrational and socially destructive institutions ever devised by humankind. Prisons cannot ever be equated with justice being done.  Prisons by themselves do not equate to justice.  While prisons may be useful for restraining some offenders and preventing others from committing further crimes whilst they are locked up, most offenders, their families and communities do not benefit from imprisonment. The overall ecology of imprisonment is as counterproductive as dousing a fire with fuel.

February 12, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (18) | TrackBack

February 11, 2013

Disparate stories price out (some) costs of poorly functioning state criminal justice systems

How Appealing had links this morning to these two notable criminal justice stories that, on the surface, seem disparate in their settings and messages:

"Tab for wrongful convictions in Texas: $65 million and counting; State the most generous in compensating exonerees; legislators ponder changes to safeguard against future false convictions." Mike Ward has this article today in The Austin American-Statesman.

"AP Exclusive: Inmate lawsuits cost Calif. $200M." The Associated Press has a report that begins, "Gov. Jerry Brown has begun aggressively challenging federal court oversight of California's prison system by highlighting what he says is a costly conflict of interest: The private law firms representing inmates and the judges' own hand-picked authorities benefit financially by keeping the cases alive."

Much can and should be said about both of these interesting reports, but the title of this post is meant to highlight one commonality: for lots of different reasons and in lots of different ways, it can often become quite costly, even when measured just in pure economic terms, whenever any aspect of a state criminal justice system is run poorly. 

February 11, 2013 in Data on sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

"Doors swing open for advocates of marijuana legalization on Capitol Hill"

The title of this post is the headline of this notable new piece from The Hill. It gets started this way:

Advocates for the legalization of marijuana plan to step up their political giving and lobbying efforts now that members of Congress are taking an interest in changing federal drug laws.

The lobbyists say lawmakers who wouldn’t give them the time of day are suddenly interested in meeting with them and introducing legislation following the approval of ballot initiatives in Colorado and Washington that legalized recreational use of the drug.

“These were folks who wouldn't take a call five years ago and now they are calling us and telling us to get up there with our PAC money and our expertise,” said Allen St. Pierre, executive director for the National Organization for the Reform of Marijuana Laws (NORML). “For those of us who have been at this for the past 20 years, it has been nice to see the warm turn.”

The piece also includes a number of important observations on various fronts, particularly about fundraising and voting blocs, which are sure to impact political realities in the years ahead:

As the movement for marijuana legalization spreads, competition for fundraising dollars is likely to grow.  A number of well-heeled donors have already opened their wallets for the cause. New Approach Washington, the main group that campaigned for legalization in that state, took in more than $6 million in contributions last election cycle.

The prolific liberal donor Peter Lewis gave more than $2 million to New Approach Washington for their legalization campaign, according to state campaign finance records. Drug Policy Action — the 501(c)(4) affiliate of Drug Policy Alliance — contributed more than $1.6 million. George Soros sits on Drug Policy Alliance’s board of directors and was a major donor to Drug Policy Action in 2012.

Lobbyists say the battle that is brewing over drug laws will be far-reaching and not confined to recreational use of marijuana.  “You going to see reform on federal drug policy in general,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “It's not just about marijuana. It's about racial disparity, over-incarceration and saving money as well.”

Capitol Hill has certainly taken notice.  Reps. Jared Polis (D-Colo.) and Earl Blumenauer (D-Ore.) each introduced separate bills this past week that would regulate and tax marijuana like alcohol.  The two lawmakers also released a report on how to rethink federal marijuana policy.  On the other side of the Capitol, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, plans to hold a hearing on marijuana policy this Congress.

Drug laws are also getting a second look from the GOP, with Kentucky Republicans rallying behind industrial hemp.  Rep. Thomas Massie (R-Ky.) introduced legislation this past week to exclude hemp from the Controlled Substances Act’s definition of marijuana. Senate Minority Leader Mitch McConnell (R-Ky.) has backed that effort, saying he became convinced that hemp production would be good for his state after long discussions with the libertarian Sen. Rand Paul (R-Ky.).

Lobbyists don’t expect a marijuana legalization bill will be on President Obama’s desk this Congress, but lawmakers know they will have to reconcile federal policy at some point with the legalization movement sweeping the states.  “I often tell elected officials that if you are going to remain relevant in politics, you are going to have to move towards drug policy reform because that's where the younger voters are,” Piper said.

One Democrat said he’s made a personal appeal to Obama — who has admitted to smoking marijuana as a teenager — for changes to federal policy.  “I raised the issue myself with the president at the Democratic retreat [on Thursday]. … It should change,” Rep. Steve Cohen (D-Tenn.), noting thousands of people are in jail for marijuana use.

Cohen plans to introduce legislation to create a commission to study states where medical marijuana and marijuana have been legalized.  Advocates believe the bill could attract White House support. “The commission gives the president some maneuvering room by affording him time and his administration acknowledges that public attitudes about this have changed,” St. Pierre said.

Though it is hard not to start thinking about funny names and acronyms for a new federal pot panel, I think a legislatively created commission tasked with reviewing and assessing marijuana reform options and realities is a fantastic ideas.  There is already buzz of competing claims by partisans about the pros and cons of marijuana reform efforts at the state level, and a national commission created by Congress may have a unique ability to sort through a haze of advocacy more effectively than more partisan players or any state-level actors.

February 11, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Intriguing (failed) effort to assail juve predicate for severe ACCA term

Though providing little solace to the losing criminal defendant, I am inclined to give blog points for creative defense advocacy efforts reflected in today's Tenth Circuit panel opinion in US v. Rich, No. 11-6342 (10th Cir. Feb 11, 2013) (available here).  Here is how the opinion starts:

Defendant Paul Everett Rich, III, pled guilty to one count of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).  Because he had been convicted of three predicate offenses, he qualified for enhanced punishment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and was sentenced to the mandatory minimum of 180 months’ imprisonment.  Rich now appeals the imposition of the sentencing enhancement claiming: 1) his juvenile adjudication was “dismissed” by Oklahoma courts and should not be counted as a prior conviction under the ACCA; and 2) the ACCA violates substantive due process by considering these older, juvenile adjudications.  We affirm.

I tend to view any substantive due process claim to be the legal equivalent of a Hail Mary pass.  But the Tenth Circuit's thoughtful engagement with this claim in the published Rich opinion provide a useful reminder that, at least in court, defendants may often need to offer up a few long-shot prayers for relief before any one will ever likely be answered.

February 11, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Talk in Chicago of increasing mandatory minimum sentences for gun possession

Chicago gunsAs reported in this new local article from Chicago, that city's "mayor, cops and prosecutors are taking aim at Illinois’ gun possession laws — calling for longer mandatory prison terms and 'truth in sentencing'." Here are some of the details of the proposal and the sentencing debate is has started to engender:

Their wish list includes boosting the minimum required sentence for people convicted of gun possession from one year in prison to three years. They hope to increase the minimum sentence for felons caught with guns from two years to three years.

They also want everyone convicted of felony gun possession to be required to serve 85 percent of their sentences. Now those inmates must complete only half their terms — and sometimes much less after earning “good time” in prison.

Cook County State’s Attorney Anita Alvarez said the proposed reforms would deter more people from carrying guns illegally and would help curb violence. “The guys who are doing the shootings would be away from the corners for a longer time,” Alvarez said in an interview.

Mayor Rahm Emanuel, whose office drafted the legislative proposals, is expected to announce them Monday with Alvarez and other officials. “Criminals continue to escape with minor sentences for possessing and using firearms,” Emanuel said in a prepared statement.

For months, police Supt. Garry McCarthy has proposed lengthening the mandatory sentence for gun possession to three years, pointing to New York City, where he was once a high-ranking cop. The state of New York passed a 3½-year mandatory minimum sentence for illegal gun possession in 2007. The following year, NFL star Plaxico Burress was arrested after a handgun he was carrying accidentally discharged and shot him.

Burress pleaded guilty to a lesser offense and was hit with a two-year jail term, drawing national attention to New York City as a place that cracks down on illegal gun possession. Criminologists point to the mandatory gun sentence in New York as one of the reasons for the Big Apple’s continuing decline in violent crime.

Chicago — whose murder tally rose 16 percent to 506 last year — has about three times as many murders per capita as New York. Also, about 85 percent of murders in Chicago involve a gun, compared to about 60 percent in New York.

While the cops and prosecutors in charge of locking up criminals support lengthier sentences, one judge said the General Assembly — and the public — need to think hard before making the gun laws harsher. “As a taxpayer of this state, I would hope the legislators are cognizant that creating mandatory minimum sentences creates a financial consequence to the state,” said Cook County Judge Nicholas Ford.  “A lot of judges bristle at mandatory minimum sentences.  It’s not my position to question it.  It’s my job to enforce whatever the legislature forwards me.

“But for a person who’s never been convicted of a felony, for a person who’s never committed a violent crime, for a taxpayer who’s never had any problems with the law, I wonder about that,” Ford said.

Alvarez responded that few people without criminal backgrounds are charged with felony gun possession in Cook County.  “You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they’re in the system,” she said.

Supporters of mandatory minimum sentences say they also provide a predictable outcome. Indeed, a Chicago Sun-Times examination found wide disparities in how often Cook County judges put people behind bars for gun possession before mandatory minimum sentences fully took effect in early 2011.

Ford, for example, sentenced 42 defendants for gun possession and sent about 76 percent to prison. About 21 percent received probation and 2 percent went to boot camp. The length of his average prison sentence was almost two and a half years. Judge Michael Brown, meanwhile, sentenced 45 defendants. About half went to prison, 23 percent received community service, 18 percent probation and 5 percent boot camp. But the length of his average prison sentence was more than three years.

Overall, Cook County judges sent nearly three-quarters of such defendants to prison for an average sentence of almost two and a half years.  About 14 percent got probation, 6 percent boot camp and 4 percent community service.  The newspaper studied 2011 sentencing outcomes in felony gun possession cases that didn’t include other types of crimes.

Many of those cases involved 2010 arrests, which didn’t apply to the mandatory minimum sentences that took effect in 2011. A separate law that took effect in late 2009 requires a minimum sentence of three years for gang members convicted of carrying a loaded gun.

The Sun-Times analysis found that judges sometimes sentenced defendants to Cook County boot camp — a four-month program with eight additional months of strict supervision. Ford called boot camp a “really solid disposition” for younger defendants without a felony record or violent background.

But Alvarez said she doesn’t think judges should have the option to sentence such defendants to boot camp. “It’s not ‘pen’ time,” she said. “I think the law is clear that they should not be giving boot camp, but judges see it a different way.”

Alvarez said she’s considering discussing the matter with Cook County Chief Judge Timothy Evans and “seeing if there’s something we need to change legislatively — or litigate it.” As Alvarez and other politicians pursue tougher gun laws, one man convicted of illegal gun possession surprisingly said they’re right.

Matthew Munoz, 24, was arrested in 2011 after he and his pals got into a squabble with rival gang members on the South Side.... Munoz was eligible for probation because his crime happened in 2010, before the one-year mandatory minimum took effect. He was sentenced to two years’ probation, but after one year he messed up when he tried to foil a drug test.

Munoz was sent to prison. But because he got credit for time he spent in the Cook County Jail, he said he spent only one day at Stateville Correctional Center. “It’s called ‘dress in and dress out,’ ” he said.

Munoz is now on parole, which he vows to complete successfully. He plans to go to school and get a job. “Some people need prison to learn their lesson,” Munoz said. “I wish I got sent to prison a long time ago. I kept getting probation for this and that. . . . Chicago is getting out of control with the gang violence. They should send those guys to prison — even guys like me.”

As serious sentencing fans know well, and as this article helps highlight, mandatory minimum sentencing laws do not really mandate prison for all offenders.  Rather, they mostly serve to transfer the discretion as to which offenders go to prison from judges to prosecutors. 

If there is good research indicating that this transfer of discretion in the gun crime settings help to reduce illegal gun use and gun violence, I can understand why folks in Chicago and elsewhere think increased mandatory minimums should be a needed response to gun crimes and gun violence.  But, as lots of research and experience reveals in the federal system and elsewhere, having prosecutors as exercising the most sentencing discretion via mandatory minimums tends to increase sentencing disparities, not ensure that similar defendants always receive similar sentences.

Recent and older related posts:

February 11, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (16) | TrackBack

"America's prison boom is starting to fizzle"

The title of this post is the first sentence of this new Wall Street Journal article, which carries this headline and subheading: "With Fewer to Lock Up, Prisons Shut Doors: Declining Inmate Population, Partly Thanks to Softer Sentences, Spurs Some Cash-Strapped States to Close Facilities." Here are highlights:

For decades, the country had little trouble filling its ever-growing number of prisons, thanks in large part to tough-on-crime policies and harsh drug laws. But a combination of falling crime rates, softer sentences for low-level and nonviolent offenders and a dwindling appetite for hefty prison budgets has begun to whittle away at the number of people behind bars. That is allowing many states to do what a few years ago seemed unthinkable: close prisons.

Comprehensive numbers on prison closures are hard to come by. But the National Conference of State Legislatures shows that 35 adult correctional facilities in 15 states have closed in the past two years, and governors in states including Pennsylvania, New York and Illinois are pushing for more closures this year....

The closures haven't been without opposition. Corrections unions and community leaders worry about job losses and say a result could be overcrowding in the prisons that remain.

Cash-strapped states are increasingly turning to corrections budgets in search of cuts. From 1982 through 2001, state corrections budgets more than tripled to a peak of $53.5 billion, according to the Bureau of Justice Statistics. Now, spending is 9% below that level. In Illinois, Gov. Pat Quinn, a Democrat, is aiming to close four adult and three youth corrections facilities in a bid to save the state $70 million.

It isn't clear whether the nation's total prison count is shrinking. Some states, including Pennsylvania, are consolidating old facilities into new ones rather than eliminating capacity. In recent years, private-prison operators built new facilities, though analysts say the pace of construction has slowed.

Still, there does appear to be a broader shift in the corrections system. From 1990 through 2009, the number of people in state and federal prisons more than doubled to 1.6 million, while the number of prisons rose 41% to 1,821 from 1990 through 2005, according to the Bureau of Justice Statistics. Then, in 2010, the inmate population fell for the first time in nearly four decades. It fell again in 2011, the bureau said.

The declines have been uneven. Roughly 70% of the 2011 decline in state prison rolls was due to a massive drop in California's inmate population owing to a Supreme Court order that the state reduce overcrowding. Many of those inmates are now in county jails or other facilities. Some states, including Tennessee and Kentucky, saw their prison populations rise in 2011.

Still, several states are experiencing a meaningful drop. Florida, Texas, New York and Michigan each shed more than 1,000 prisoners in 2011. Each of those states closed prisons in the past two years....

Policy experts attribute the declines partly to measures aimed at reducing the number of nonviolent offenders behind bars. In New York, they cite the 2009 relaxation of the state's tough Rockefeller-era drug laws. Prison rolls in New York fell by nearly a quarter from a peak of 72,600 in 1999 to about 55,000 in 2011, the latest data available.

Texas closed a state prison for the first time everin August 2011. Until the closure, the state had built an average of more than three prisons a year since 1990, according to the Texas Department of Criminal Justice. "You've got to distinguish who you're afraid of and who you're mad at. You're afraid of child molesters, murderers and rapists," said State Sen. John Whitmire, who has helped lead an overhaul of the Texas prison system. "People like low-level offenders, you're not afraid of them."...

In rural areas, which often depend on prisons for jobs, a closure can be particularly difficult. In early January, Pennsylvania officials said they planned to shut prisons in Cresson and Greensburg and replace them with a single facility near State College. "It's going to hurt the restaurants, the hardware store, every business place here is going to be affected," said Patrick Mulhern, the longtime mayor of Cresson, east of Pittsburgh. "Five hundred employees in one fell swoop — that's an awful lot."

February 11, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (8) | TrackBack

February 10, 2013

"Plea Bargaining, Sentence Modifications, and the Real World"

The title of this post is the title of this new paper on SSRN by Julian A. Cook. Here is the abstract:

This article examines the 2011 Supreme Court decision in United States v. Freeman.  At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission.  By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction.  However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for the Commission for many years to come.  In her opinion, Sotomayor suggests, in dicta, that the government can preempt future sentencing reduction claims through the insertion in plea agreements of waiver clauses. Should the Department of Justice adopt such a policy, the article warns of (and describes) the long-term adverse consequences that such a decision would have for criminal defendants and for ability of the Commission to achieve equity through guideline sentencing.

As part of its critique of Freeman, the article also explains why the Freeman Court erred in its analytical approach.  In so doing, it illuminates the real world of plea bargaining in the Freeman context, and explains why this plea negotiation truism provides a sounder, firmer, and clearer foundation to decide not only Freeman-type cases but any such case involving a sentence reduction claim.  The article also uses Freeman to highlight and correct a common misunderstanding about the nature of plea agreement contracts.  It explains why plea agreements have been erroneously construed as unilateral arrangements between the prosecution and the defendant, and why they should properly be interpreted as bilateral contracts involving three parties — the prosecution, the defendant and the court.

February 10, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

Guest post on Amish sentencing: "A Travesty in Cleveland"

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended this past Friday's high-profile federal sentencing of the Amish defendants involved in the high-profile beard-cutting attacks in northern Ohio.  I am pleased to be able to now reprint his lengthy guest-post on the sentencing proceedings:

Living in northeast Ohio, I have encountered Amish on several occasions, usually on the road behind their horse-drawn buggies, but never in a courtroom.  Yesterday I had the opportunity to sit through perhaps the most surreal sentencing I will ever encounter. Reminiscent of the movie “Witness,” the followers of Samuel Mullet, Jr. sat on the right side, with the women wearing kerchiefs, while victims and their supporters sat on the left with the women wearing bonnets — the only apparent distinction between the two groups. The men, all in similar attire, had large, solid hands, built up from years of farming, some with flecks of mud on their clothing.  They sat quiet, subdued, and unlike the “English” present, did not speak among themselves.

These obviously were simple, passive people, involved in a serious and unfortunate dispute.  A dispute that resulted in shameful and abusive conduct by Mullet and some of his followers against other Amish: beard and hair cutting, which held religious symbolism. This conduct, while criminal, was not tantamount to the seriousness reflected in the severity of the sentences handed down.   That Mullet received a 15-year sentence for ordering the assaults, and that his remaining followers received from a year-and-a-day to 7 years, which will result in effectively orphaning a few dozen children, was the most surreal part of yesterday’s sentencing.

Given the severity of the sentences the government (incredulously sought) — in Mullet’s case, life — it was surprising that statistics were not raised during the hearing.

First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced.  While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times.  Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year.  Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases.  In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months).  While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence.  Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?

Finally, Mullet is 67.  A 15-year sentence still effectively is a life sentence for him.  With an already over-crowded federal prison system and growing, Mullet’s time will be even more onerous than most in light of his age and most glaringly, his cultural and religious background, will make him highly susceptible to abuse.  Further, his age will impose additional financial burdens on the BOP, with some estimates as high as $90,000 per year. Is this an appropriate use of the public fisc?

This was an awful case from every perspective.  Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation.  Clearly, the courts of Ohio could have (and should have) addressed this matter.  The sentences handed down merely have compounded the travesty of this prosecution.  While Judge Polster did an admirable job in detailing his reasoning — especially noting the irony of the Amish defendants trampling the very Constitution that makes their lifestyle possible — but for the absurdity of a federal sentencing system that has for years encouraged the judiciary to hand out multi-year sentences as if they are candy, one wonders how Judge Polster would have sentenced unencumbered by a sentencing regime that clearly did not contemplate the facts of this case and has otherwise run amok.

The federal government not only chose to prosecute these assaults as if they were kidnappings but hate crimes.  While technically hate crimes given the religious motivation for the assaults, the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the statute was intended to address, while the punishment, ironically, was.  Indeed, the hate crime statute upon which the defendants’ convictions rested — 18 U.S.C. s. 249 — was enacted as part of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  Both Shepard and Byrd were the victims of the most atrocious and violent hate crimes in recent memory — Shepard tortured and left to die tied to a fence in Wyoming because of his sexual orientation, and Byrd gruesomely dragged to his death and decapitated behind a pick-up because of his race.  Sentencing these Amish assaults as if they were equivalent to the offenses suffered by Shepard and Byrd is an affront to their memories.  Hopefully the Sixth Circuit will rectify this manifest injustice.

Related posts:

February 10, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (39) | TrackBack

District judge rejects too sweet federal plea deal for long-time fraudster in Pennsylvania

A helpful reader sent along this interesting local article from Pennsylvania, eadlined "Rosetti plea rejected by judge," reports on a case in which a federal judge took the usual step of rejecting a plea deal as too lenient. Here are the details:

In a strong rebuke calling for "just punishment," a federal judge has rejected the plea agreement made by Fred Rosetti, Ed.D., former executive director of the Northeastern Educational Intermediate Unit.   The deal, which called for 12 to 18 months in prison, is not appropriate for the "defendant's longstanding, pervasive and wide-ranging criminal activities," U.S. District Judge Robert D. Mariani wrote in his order.

Dr. Rosetti, who is accused of intentionally failing to record sick and vacation days, creating false travel vouchers and ordering employees to do personal tasks for him, now has the option of withdrawing his plea and going to trial or keeping his plea and letting the judge determine his sentence.  He could also try to negotiate a new plea agreement.

"The sentence proposed by the plea agreement, as well as the agreement's other terms, do not reflect the seriousness of the offense, do not promote respect for the law and do not provide just punishment for the offense," Judge Mariani's order states.

In October, Dr. Rosetti pleaded guilty to theft and mail fraud charges in a plea deal with prosecutors that called for 12 to 18 months of imprisonment and restitution of $120,000....  A presentence investigation report completed earlier this month and prepared by the United States Probation Office "describes a 12-year pattern of abuse of public trust and executive authority for private gain."

The report, which is not available to the public but part of which is detailed in Judge Mariani's order, describes how Dr. Rosetti intentionally failed to document time off from the NEIU, in the form of vacation, personal and sick leave.  For every day he did not record, he received a larger payout....

Other actions described in the order include ... 127 fraudulent travel vouchers, which Dr. Rosetti created or ordered employees to create, at a cost of $18,106.75.  Dr. Rosetti threatened employees with the loss of their jobs if they did not oblige....

The presentence report indicates the loss to the NEIU totals $137,944.13, but the plea agreement calls for restitution of $120,000.  The difference is significant because the amount could lead to a stricter sentence under federal sentencing guidelines that call for 27 to 33 months in prison....

The report also details the defendant's attempt to "obstruct or impede the administration of justice." Dr. Rosetti has been on home confinement since contacting witnesses this spring and subsequently spent 12 nights in jail....

When Dr. Rosetti was indicted in February 2012, prosecutors said that if convicted of the most serious charges, he could have faced 10 years in prison, a $250,000 fine and the forfeiture of $240,000, the contents of two bank accounts and his Archbald home. Dr. Rosetti originally faced 13 counts of fraud, theft and money laundering.  The plea agreement Judge Mariani rejected called for Dr. Rosetti to plead guilty on two counts: Count 1, mail fraud relating to a package delivered at NEIU expense; and Count 8, theft concerning programs receiving federal funds....

A hearing has been scheduled for Feb. 21 to inform Dr. Rosetti of his options and give him an opportunity to withdraw his plea.  If he does not withdraw his plea, a sentencing hearing is scheduled for March 5.  Judge Mariani would then determine Dr. Rosetti's punishment.

The District Court's 11-page order explaining its ruling is available at this link.

February 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Top Texas criminal court to hear case on Miller retroactivity

Over at Grits for Breakfast, Scott Henson has this helpful post reporting on the recent decision by the top criminal appeals court in Texas to consider the application of Miller in the Lone Start state.  Here is how the post gets started:

The Texas Court of Criminal Appeals this week agreed to hear arguments in Ex Parte Terrell to determine whether the Supreme Court's Miller v. Alabama — a case which banned life without parole (LWOP) sentences for juveniles if lesser options weren't offered — applies retroactively in Texas.   As I understand it, around 28 Texas prisoners convicted of capital murder at age 17 since 2005 find themselves in that category: That's when the Legislature eliminated life without parole for juveniles 16 and under who, when convicted of capital murder, are now eligible for parole after 40 years.

For 17-year olds, though, who are tried as adults, there is presently no legal sentence available under Texas law. A 2005 statute made the death penalty and LWOP the only available sentences for adults convicted of capital murderers, and for purposes of trying to kill them or incarcerate them for life, at least, Texas treats 17 year olds as adults.  Or they were until the Supreme Court said that, for the most extreme sentencing purposes, they belonged in the juvenile category.  The SCOTUS ruling prompted state courts, now including Texas, to reconsider their old juvie LWOP sentences, and the results have been all over the map.  In Texas, this will be a case of first impression.

February 10, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack