Wednesday, December 11, 2019

Sentencing recommendation for Rick Gates highlights what a difference a guilty plea and lots of cooperation can make

All federal practitioners know, and all federal defendants should know, that what a defendant actually did can often matter a lot less in the sentencing process than whether that defendant pleads guilty and cooperates with authorities.  The latest reminder of this reality comes from the upcoming sentencing of Rick Gates, who was indicted two years ago in a 31-page indictment of  available via this link in which he was portrayed as a "partner in crime" with Paul Manafort. 

Manafort, of course, fought the charges and after being found guilty (on less than half of the charges given to the jury), federal prosecutors calculated his applicable guideline range as nearly 20 to 25 years in prison and seemed to argue that Manafort deserved a 20-year prison term for his criminal behaviors.  (Matters get complicated thereafter because Manafort pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.) 

Gates, in telling contrast, decided to plead guilty and cooperate with authorities.  Doing so contributed to a guideline calculation setting this advisory Guidelines range at 46 to 57 months of imprisonment.  And, as this Politico article highlights, it has now also led the federal prosecutors not to oppose Gates' request for a sentence of probation and no fine in this 19-page sentencing memo.  Here is part of the Politico piece providing highlights:

Rick Gates should be rewarded with probation after serving as a critical high-profile government witness whose testimony helped net convictions against two of President Donald Trump’s campaign aides, the Justice Department and an attorney for the former Trump deputy campaign chairman said in a pair of new court filings.

Gates — who pleaded guilty in February 2018 to financial fraud and lying to investigators — quickly became a fountain of information for Robert Mueller’s investigators, eventually testifying against both former Trump campaign manager Paul Manafort and Roger Stone, Trump’s long-time political whisperer.

The 47-year-old GOP operative spent more than 500 hours with federal and state prosecutors, both before and after he officially flipped on Trump and his allies. He also responded to three congressional subpoenas for documents and testimony. Gates’ voice dominates the final Mueller report, as he recounts details about how Trump and his 2016 campaign coordinated and planned for the release of stolen Democratic emails at critical moments of the White House race.

In a filing Monday, Gates’ attorney pleaded with U.S. District Court Judge Amy Berman Jackson to give his client probation and impose no fines when she sentences him Dec. 17. “We believe that the parties are in agreement that Mr. Gates has fulfilled every obligation he agreed to (and then some) and that he has devoted enormous energy and commitment to this task while telling the truth and maintaining his composure,” wrote Gates’ attorney, Tom Green.

Federal prosecutors — who inherited the Gates case from Mueller — said in a filing Tuesday that they wouldn’t oppose the request for probation. The former Trump deputy had “provided the government with extraordinary assistance,” wrote Molly Gaston, an assistant U.S. attorney in Washington D.C.  That included 50 meetings with investigators, during which Gates provided “truthful information” to Mueller and several other DOJ offices, as well as a vow to testify in any ongoing cases.  "Gates’ cooperation has been steadfast despite the fact that the government has asked for his assistance in high-profile matters, against powerful individuals, in the midst of a particularly turbulent environment," Gaston added.

Without elaborating, Gaston also said Gates had "received pressure not to cooperate with the government, including assurances of monetary assistance."  Gates has already helped the government at several high-profile moments.  In August 2018, he incriminated Manafort from the witness stand in several crimes, including multimillion-dollar tax evasion, bank fraud and hiding offshore accounts.  A jury later convicted Manafort, who is now serving a 7 1/2-year prison sentence. Gates also appeared last month as a star witness in the trial against Stone, who was convicted of lying to Congress about his efforts to contact WikiLeaks in the 2016 presidential race.

For so many reasons, the crimes and subsequent behaviors of Manafort and Gates are unique in many ways.  But federal practitioners know well that it is actually quite common for one defendant who goes to trial to be facing a prosecutorial recommendation of decades in prison while a cooperating co-defendant involved in comparable criminal behavior receives a recommendation for only probation.

December 11, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 09, 2019

Third Circuit panel finds error where district court "improperly relied on [defendant's] bare arrest record in determining his sentence"

I just saw the Third Circuit panel ruling from late last week in US v. Mitchell, No. 17-1095 (3d Cir. Dec. 5, 2019) (available here), which makes a strong statement against the reliance on an arrest record at sentencing.  Here is how the opinion starts and key passages thereafter:

A jury found Tyrone Mitchell guilty of seventeen drug distribution and firearms offenses.  Mitchell appeals his judgment of conviction and sentence of 1,020 months’ imprisonment, raising eight arguments nearly all of which are unavailing.  We do, however, agree with Mitchell as to one sentencing-related argument — that the District Court plainly erred by relying on Mitchell’s bare arrest record to determine his sentence.  We therefore affirm Mitchell’s judgment of conviction, vacate the judgment of sentence, and remand for resentencing....

Under the Due Process Clause, “[a] defendant cannot be deprived of liberty based upon mere speculation.”  Accordingly, in determining a sentence, although a court can mention a defendant’s record of prior arrests that did not lead to conviction, it cannot rely on such a record.  As we recognized in United States v. Berry, “a bare arrest record — without more — does not justify an assumption that a defendant has committed other crimes.”...

Contrary to the Government’s assertions, Mitchell did not just demonstrate that the District Court “noticed that he had a number of arrests that did not result in convictions.”  To the contrary, Mitchell has “bridge[d] the gap between reference and reliance,” and has thus shown plain error.  Looking at the record below in its entirety, we conclude that the District Court improperly relied on Mitchell’s bare arrest record in determining his sentence.  For example, the Court interrupted the prosecutor to highlight Mitchell’s arrests and later recited all 18 of Mitchell’s arrests.  The Court also explicitly referred to Mitchell’s arrests when describing his “long and serious” criminal record and identified Mitchell’s “extensive criminal history” as the sole justification for his sentence.  Resentencing is therefore required.

December 9, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, December 04, 2019

"Race and Class: A Randomized Experiment with Prosecutors"

The title of this post is the title of this notable new research just published in the December 2019 issue of the Journal of Empirical Studies and authored by Christopher Robertson, Shima Baradaran Baughman and Megan Wright.  Here is its abstract:

Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases.  Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity.  Disparities may also be driven by socioeconomic class differences, which are highly correlated with race.  This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions.

Case vignettes are manipulated between subjects in five conditions to test effcts of defendants’ race and class status.  In the control condition, race and class are omitted, which allows baseline measures for bias and pilot testing of a blinding reform.  Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof.  With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions.  This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes.

December 4, 2019 in Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Sunday, November 24, 2019

Two new disconcerting reports on southern justice

This past week I saw two notable new reports from pubic policy groups about criminal justice problems in southern states.  Here are links to the reports and excerpts from them:

About Alabama via the Equal Justice Initiative, "As Prison Spending Increases, So Does Violence and Misconduct":

A new study by the Equal Justice Initiative on Alabama’s prisons concludes:

  • In the first 10 months of 2019, twice as many Alabama prisoners have been murdered (13) than the entire 10-year period between 1999 and 2009, making Alabama’s current system the most violent in the nation

About Mississippi via FWD.us, "We All Pay: Mississippi’s Harmful Habitual Laws":

Mississippi has an incarceration crisis, driven in large part by its use of extreme sentences. In fact, long prison sentences have become the norm in Mississippi. First-time drug possession can land you in prison for 20 years. Stealing tools from a garage can result in 25 years behind bars. These excessively long sentences weaken Mississippi’s families and workforce and waste tax dollars since they also do nothing to make neighborhoods safer....

Of the more than 2,600 people in prison today who have been sentenced with a habitual penalty, one-third (906 people) have been sentenced to more than 20 years in prison. Nearly half of that group (439 people) has been sentenced to die in prison through either a life or virtual life sentence of 50 years of more.

The impact of these laws is not felt equally across communities: Habitual penalties are applied overwhelmingly and disproportionately to Black men. Despite making up 13 percent of the state’s population,75 percent of the people with 20+ year habitual sentences are Black men.

November 24, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, November 21, 2019

"Prosecuting Opioid Use, Punishing Rurality"

The title of this post is the title of this new paper authored by Valena Elizabeth Beety no available via SSRN. Here is its abstract:

The opioid crisis spotlights rural communities, and accompanying that bright light are long-standing, traditional biased tropes about backwards and backwoods White Appalachians. These stereotypes conflate rurality with substance use disorder as the next progression in dehumanizing stereotypes.  Widespread attention to our nation’s use disorder crisis, however, also brings an opportunity to recognize these fallacious stereotypes and to look more closely at the criminal legal systems in rural communities.  In this Article, I use drug-induced homicide — what has become a popular prosecutorial charge in response to the opioid crisis — as a prism to identify and critique the failings in rural criminal courts more broadly.  This Article includes modest recommendations that acknowledge and respond to these inadequacies while attempting to preserve people’s constitutional rights and decrease opiate-related overdoses.

November 21, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Friday, November 15, 2019

SCOTUS grants cert on yet another ACCA case and also on statute of limitation on military rape charges

Via this new order list, the Supreme Court has added four new cases to its merits docket.  The big one of the bunch is a case involving Google and copyright issues concerning computer code, but the others are criminal cases.  One has SCOTUS focused on the application of the Armed Career Criminal Act yet again, and two combined others deals with statutes of limitation.  Here are descriptions of the new criminal cases via this post at SCOTUSblog (with paragraphs rearranged): 

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case. He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.

The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

The justices also granted two requests by the government to weigh in on the statute of limitations for old rape charges against members of the armed forces.  The question arises in the case of Michael Briggs, a captain in the U.S. Air Force who in 2014 was charged with the 2005 rape of a member of his squadron.  Under the version of the Uniform Code of Military Justice that was in effect when Briggs was charged, there is no statute of limitations for rape.  At his court-martial proceeding, Briggs was found guilty, but an appeals court later ordered that the charge be dismissed.  It reasoned that under a 2018 ruling by the same court, the five-year statute of limitations for the version of the UCMJ in effect in 2005 applied to Briggs’ offense.  The court also ruled that a 2006 law that specifically provides that there is no statute of limitations for rape does not apply to rapes committed before 2006.

The government filed a separate petition for review in the case of two other members of the Air Force.  Richard Collins was an instructor at an Air Force base in Texas.  In 2016 he was found guilty of the August 2000 rape of a student in his course.  As in Briggs’ case, an appeals court reversed Collins’ conviction, pointing to a 2018 decision by the same court.  Humphrey Daniels was convicted in 2017 of the 1998 rape of a civilian near the North Dakota Air Force base where he was stationed; his conviction was also reversed.

The government appealed to the Supreme Court, asking the justices to grant both petitions.  The government told the justices that sexual assault is “devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover.”  The request was supported by a “friend of the court” brief by Harmony Allen and Tonja Schultz — the victims of Collins and Daniels. Today the justices agreed to take up the case.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New Jersey commission releases big report recommending numerous big sentencing reforms

As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:

The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.

The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.

Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.”  State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...

The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”

The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.

Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.

This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.

The NJ commission's full report is available at this link, and it is a worthwhile read in full.  Here is the report's "Summary of Recommendations":

1. Eliminate mandatory minimum sentences for non-violent drug crimes.

2. Eliminate mandatory minimum sentences for non-violent property crimes.

3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.

5. Create a new mitigating sentencing factor for youth.

6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.

7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.

8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.

9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, November 13, 2019

Longest prison sentence (six months) imposed in college admission scandal on big-spending dad

As reported in this USA Today piece, today in Boston "Toby MacFarlane, a former real estate and title insurance executive from California, was sentenced to six months in prison Wednesday for paying $450,000 to get his daughter and son admitted into the University of Southern California as fake athletic recruits."  Here is more:

It marks the longest prison sentence so far handed down among 13 parents and one college coach in the nation's college admissions scandal.

U.S. District Judge Nathaniel Gorton stressed that MacFarlane participated in the nationwide admissions scheme led by college consultant Rick Singer "not once, but twice," taking seats at USC away from two deserving students. He told MacFarlane his actions should be tolerated no more than a common thief's actions, "because that's what you are — a thief."...

Gorton also sentenced MacFarlane to two years of supervised release, 200 hours of community service and a $150,000 fine....

Addressing the court, MacFarlane, himself a USC graduate, apologized to his family, friends, former business partners and his alma mater, as well as "all of the students who applied and didn't get in."...

Gorton opted to impose a harsher sentence than called for in sentencing guidelines, citing the “fraudulent, deceitful" nature of MacFarlane's conduct. The judge's decision could be a preview of how he will approach other parents who go before him — including actress Lori Loughlin — who have pleaded not guilty.

MacFarlane, a former senior executive at WFG National Title Insurance Company, made two separate payments of $200,000, one in 2014 and on in 2017, to the sham nonprofit operated by Singer. Singer, in turn, facilitated his children's admissions into USC through bribes to one current and two former USC employees. MacFarlane also made a $50,000 payment to USC athletics.

The first transaction involved the admission of MacFarlane's daughter into USC as a fake soccer recruit. He then paid Singer again to admit his son into USC posing as a basketball recruit. "The defendant knew what he was doing was wrong. He knew it wasn't accepted at the school," Assistant U.S. Attorney Eric Rosen told the judge. "So what does he do? He does it again with his son.”

Rosen said MacFarlane deserved prison because he was the first parent who paid into Singer's "side-door" recruitment scheme twice. He asked the judge to "send a message" as a result.

MacFarlane's defense attorney, Ted Cassman, sought a lighter sentence, arguing his client was less culpable than other parents sentenced in the admissions scheme. Unlike other parents, he said MacFarlane did not seek out Singer for cheating but for his consulting services. He said MacFarlane already suffered "swift and severe" collateral consequences from his conduct. He also pointed to MacFarlane's divorce, which separated his family and pressured him to buckle to Singer's offer....

The toughest prison sentence previously ordered was five months for Agustin Huneeus, a Napa Valley, California winemaker. Huneeus, who agreed to pay Singer $300,000 is the only defendant to take part in both the recruitment scheme and Singer's plot to cheat on college entrance exams. U.S. District Judge Indira Talwani handed down the sentence of Huneeus and 11 other parents while Judge Douglas Woodlock sentenced one other parent.

Twenty-nine defendants, including 19 parents, have either pleaded guilty in court or agreed to plead guilty to charges in the historic admissions case. Igor Dvorsiky, a former administrator for the ACT and SAT, pleaded guilty in court Wednesday to racketeering charges for accepting nearly $200,000 in bribes to opening a private school he operated in Los Angles for cheating in Singer's scheme. He admitted to opening it on 11 occasions, involving 20 students, for cheating.

Prior related Varsity Blues posts:

November 13, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Sunday, November 10, 2019

"The Effect of Scaling Back Punishment on Racial Disparities in Criminal Case Outcomes"

The title of this post is the title of this recent research paper authored by John MacDonald and Steven Raphael that I just came across.  Here is its abstract:

Research Summary

In late 2014, California voters passed Proposition 47 that redefined a set of less serious felony drug and property offenses as misdemeanors.  We examine how racial disparities in criminal court dispositions in San Francisco change in the years before (2010-2014) and after (2015-2016) the passage of Proposition 47.  We decompose racial disparities in court dispositions into components due to racial differences in offense characteristics, involvement in the criminal justice system at the time of arrest, pretrial detention, criminal history, and the residual unexplained component.  Before and after Proposition 47 case characteristics explain nearly all of the observable race disparities in court dispositions. However, after the passage of Proposition 47 there is a narrowing of racial disparities in convictions and incarceration sentences that is driven by lesser weight placed on criminal history, active criminal justice status, and pretrial detention in effecting court dispositions.

Policy Implications

The findings from this study suggest that policy reforms that scale back the severity of punishment for criminal history and active criminal justice status for less serious felony offenses may help narrow racial inequalities in criminal court dispositions.  Efforts to reduce the impact of racial inequalities in mass incarceration in other states should consider reforms that reduce the weight that criminal history, pretrial detention, and active probation status has on criminal defendants’ eligibility for prison for less serious drug and property offenses.

November 10, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Thursday, November 07, 2019

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of capital headlines from the Lone Star State

Texas is always making news when it comes to the administration of the death penalty, and yesterday had a number of notable headlines about a number of notable cases:

An execution: "El Paso death row inmate Justen Grant Hall executed for woman's strangulation in 2002"

A removal from death row: "Bobby Moore's death sentence is changed to life in prison after lengthy court fights over intellectual disability"

Increasing attention to innocence claim for person scheduled to be executed Nov 20: "Texas is about to execute a man for murder. His lawyers say someone else confessed to the crime."

UPDATE:  A helpful reader made sure I did not miss another notable Texas capital headline today:

A stay: "Federal judge delays execution of “Texas Seven” prisoner over claims of religious discrimination"

 

November 7, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, November 06, 2019

Notable Wall Street Journal commentaries decry injustices highlighted by college admission scandal prosecutions

I have blogged a lot about the college admission scandal prosecutions because they provide a high-profile setting for shinning a bright light on some ugly features of criminal justice in America.  The Wall Street Journal editors this week have been eager to do such light-shinning as evidenced by these two notable new commentaries in its pages:

Authored by William McGurn, "Free Lori Loughlin: The feds are treating the actress as if she and her husband were Bonnie and Clyde." Some excerpts:

If convicted of all the charges federal prosecutors have piled up against them, Ms. Loughlin and her husband could be sentenced to as much as 45 years in prison.  This is nuts.

The same operation that caught Ms. Loughlin also snared dozens of other high-powered people, including CEOs, lawyers and venture capitalists.  They too are accused of paying fixer William “Rick” Singer either to cheat on their kids’ college entrance exams, to present them fraudulently for college admission as athletes, or both.  But Ms. Loughlin’s celebrity status has ensured that she and fellow actress Felicity Huffman remain the face of the scandal for most Americans.

With this difference: While Ms. Huffman pleaded guilty, apologized profusely and served out her sentence (14 days, but released after 12 because it was a weekend) at the Federal Correctional Institution in Dublin, Calif., Ms. Loughlin and Mr. Giannulli are insisting, perhaps unwisely, on taking their case to a jury.  Meanwhile, in the same way the sans-culottes jeered Marie Antoinette on her way to the guillotine, today’s equivalent — Twitter mobs and gossip sheets — are thirsting to see this icon of Tinseltown wealth and privilege cut down to size by a stint in federal prison.

Now, it may well be standard procedure for prosecutors to add new charges when their targets refuse to plead. But does anyone else think it a stretch to argue that two California residents bribing their children’s way into a private California university are committing a crime against the federal government? Or that the statutes she’s accused of violating, such as bribery or money laundering in connection with a program that receives federal funding, were really intended to go after people such as Ms. Loughlin?

All of which has yours truly hoping Ms. Loughlin and her husband prevail. Not because they are innocent. But because the case reeks of overreach, as well as my unease with the idea that the FBI and Justice are the vehicles to deliver fairness in college admissions....

There are many ways to punish Ms. Loughlin. Some of them have already happened even without a conviction: The Hallmark Channel severed all ties; Netflix will film the last season of the reboot “Fuller House” without her; and her daughters were forced to leave USC under humiliating circumstances.  Ms. Loughlin, remember, is a nonviolent first-offender.  By all means, stick her with a fat fine and community service. But it’s just overkill for federal prosecutors to be devoting so much of their time and resources to make sure this woman goes to prison.

Authored by Alan Dershowitz, "Most Plea Bargains Are Unconstitutional: Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment." Some excerpts:

When is a constitutional right not a right? When you’re punished for exercising it.  If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say.  Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual — even by the Supreme Court.

In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them.  A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial.  He rejected the plea offer because he believed he was innocent and had expert testimony to back him up.  In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial....

Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”

In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.”  Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.  As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights.  Any judge would see through the maneuver.  So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty.  If the penalty were held unconstitutional, it could overwhelm the system.  But is that a good enough reason to trample a constitutional right?  Under America’s Constitution, rights are the absolutes to which practical considerations must adapt.  We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial.  We can also decriminalize many actions that are today treated as crimes, beginning with drug use....  

The time has come to end the unconstitutional trial penalty.

November 6, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, October 22, 2019

Author and veteran (and bank robber) gets out of federal prison a few months earlier thanks to FIRST STEP Act and sound view of "extraordinary and compelling reasons"

Cherry1Regular readers are likely tired of my many posts about the provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I am not close to tired of telling all the interesting stories of federal prisoners that now come to light via this provision, and this local press article reports on the latest interesting defendant to secure relief thanks to the FIRST STEP Act through this means.  The article is headlined, "Imprisoned Cleveland-area author moved to halfway house while production commences for movie adaption directed by Russo brothers," and here are the basics:

A federal judge on Thursday ordered a Cleveland-area native who wrote an acclaimed novel while in prison for a rash of bank robberies moved to a halfway house.

Nico Walker, 34, was arrested in 2011 for a series of robberies in Cleveland and the eastern suburbs. An Army veteran who served as a combat medic in Iraq, Walker suffered from post-traumatic stress disorder and other mental health issues that led to drug abuse and the robberies, records show.

Senior U.S. District Judge Donald Nugent sentenced Walker, who hails from Hunting Valley, to 11 years in federal prison. He has spent most of his time at a facility in Ashland, Kentucky.

With Walker nearing the end of his prison sentence because of good time, he asked the judge to allow him to move into a Mississippi halfway house. The judge agreed to do so following a hearing Thursday, moving Walker’s re-entry program start date up from Dec. 10.

Walker wrote the semi-autobiographical novel “Cherry” while he was in prison. The book details the life of an Army medic with post-traumatic stress disorder who robs banks to support his opioid addiction. The book, based in Cleveland, is being made into a movie directed by native sons and “Avengers” directors Anthony and Joe Russo. Tom Holland, who plays Spider-Man in the Marvel Cinematic Universe, is set to star as the main character.

Because of this, Walker was given “an unusual and lucrative job opportunity” to work as an executive producer and assist in production of the movie being filmed in Cleveland, Nugent wrote in an order. However, Walker’s attorney Angelo Lonardo said his client turned down the job offer. Walker also has a contract to write a second book, Nugent wrote.

Nugent wrote that Walker also plans to care for his ailing mother, who is suffering from leukemia, Nugent wrote. The judge issued his order based on the First Step Act, a criminal justice bill President Donald Trump signed in December. Moving Walker to a halfway house and allowing him to occasionally travel to care for his mother “will address the extraordinary and compelling issues raised in his request” and ensure his re-entry will be successful and the community will be safe, the judge wrote.

Lonardo said his client had no disciplinary infractions while in prison. He said Walker taught reading and writing behind bars. “This is a big deal,” Lonardo said. “You want your guys to get out and to have a decent job, and this is an excellent opportunity for him.” He added that his client “has earned this.”

Judge Nugent's six page order is available at this link, and here I especially like how the opinion righly recognizes how a combination of factors can make the case for a sentence reduction:

Taking into consideration Mr. Walker?s history; the circumstances leading up to his crime; his acceptance of responsibility not just with regard to the conviction but as demonstrated through the meaningful use of his time in prison; the failing health of his mother; his extraordinary job opportunity and the good that would allow him to do for his family and his community; and, the minimum time left remaining on his sentence; the Court finds that Mr. Walker has provided sufficiently extraordinary and compelling reasons to justify an alteration of his current sentence.

Last but not least, anyone looking for more evidence of how extraordinary and compelling the story of Nico Walker is, consider checking out these recent press articles about his past and his book:

October 22, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Saturday, October 19, 2019

You be the judge: what sentence for driver convicted of reckless homicides for accidentally killing children boarding school bus?

A helpful reader altered me to a heart-breaking story from Indiana which serves as an opportunity to considering what seems a fitting sentence for a crime with a horrible result but a result that was plainly not intended by the wrong-doer. Here are some details from this local article:

Nearly a year after Alyssa Shepherd drove past a stopped school bus, killing three siblings as they crossed a two-lane highway to board the bus, a Fulton County jury convicted her of reckless homicide in the children's deaths.  Shepherd, prosecutors say, was driving a pickup truck that struck and killed twins Xzavier and Mason Ingle, both 6, and their sister Alivia Stahl, 9, and also critically injured Maverik Lowe, 11, as they crossed the highway north of Rochester on Oct. 30.  Lowe, who's still recovering from his injuries, has had more than 20 surgeries since the crash.

Shepherd was found guilty Friday of three felony counts of reckless homicide.  The jury also found her guilty of a felony count of criminal recklessness and a misdemeanor count of passing a school bus causing injury when the arm is extended. She faces up to 21 years if given the maximum amount on each count.

The parents of Mason and Xzavier, Shane and Brittany Ingle, and Michael Stahl, Brittany's ex-husband and Alivia's dad, told reporters after the verdict that they were relieved, and have no sympathy for Shepherd, who they believe has shown no remorse for the crash.  "I don't think we'll ever feel closure," Brittany Ingle said. "But this will go toward healing."...

Earlier Friday, Shepherd took the stand in Fulton Superior Court. Family members of Shepherd and the victims, had filled the Fulton County courthouse this week to hear testimony from witnesses and law enforcement.  When asked by her attorney when it started to sink in that she’d hit and killed three children after driving past a school bus, Shepherd described emotions ranging from disbelief to hysteria.  But at first it was confusion, according to her testimony. She remembered seeing blinking lights and something that appeared to be a large vehicle.  But she didn't see a bus, Shepherd says, nor did she see the red sign telling her to stop.

When she'd realized what she'd done, Shepherd says she was hysterical.  "The only way I can describe it is an out-of-body experience," Shepherd said, according to the account provided to IndyStar by the small number of reporters who were allowed into the packed courtroom, "I was a mess."

The four children were crossing the highway to board their school bus about 7:15 a.m. when prosecutors say Shepherd blew by a stopped school bus.  The road was dark but prosecutors said the bus lights and stop arm were clearly visible.  Whether Shepherd was behind the wheel that morning was not being disputed, according to statements made from the defense and prosecution during the trial.  Jurors instead decided whether Shepherd’s actions were reckless or simply accidental....

Shepherd was driving with three children in the back seat of her Toyota Tacoma before the crash happened, according to court documents.  She had just dropped off her husband at work at about 7:05 a.m. and was heading to her mother's home in the Rochester area to drop off her little brother when she rounded a bend on Indiana 25.  She'd taken that road many times before, her attorney Michael Tuszynski said, but rarely at that time of day.

As she was driving, the 24-year-old Shepherd saw something in the distance, but couldn't quite make it out, according to Tuszynski, who said that a freightliner was behind the bus, making it appear to Shepherd as one large vehicle.  "The circumstances of the bus, with the freightliner behind it, combined to create the profile of one vehicle, making it seem like it's a semi that's moving. And she's confused about what she sees," he said.

But after the crash, the driver of another vehicle that was following Shepherd's Toyota through the bend on Indiana 25 said the school bus lights and stop arm were clearly visible even though the road was dark.  This is according to testimony from Indiana State Police detective Michelle Jumper during a probable cause hearing held hours after the crash.

The witness said she and Shepherd were traveling at 45 mph, Jumper testified.  The witness said she slowed when she saw the school bus and its blinking lights. Shepherd didn't. "Suddenly she sees the children," Tuszynski said Friday. "She brakes. But it was too late."  Shepherd's friend, Brittany Thompson, who spoke to Shepherd on the phone after the crash, testified that Shepherd said she'd seen the lights and was trying to negotiate how far to move over. Thompson said Shepherd was distraught. "I didn't know it was a bus," Shepherd reportedly said.

The victims' family told reporters that Shepherd appeared cold during the trial, and seemed unconcerned with the deaths that resulted from her actions. "When I was giving my testimony," Brittany Ingle said, "I looked her straight in the eyes and she gave nothing. She had no remorse."

Tuszynski said there was no evidence of drugs or alcohol in Shepherd's system at the time of the crash.  He placed blame on the location of the bus stop, which required the children to cross the highway to board the bus.  "The idea that it was OK to make those kids cross that busy road to get on a bus, rather than move the stop into the (trailer) park, is absurd," Tuszynski said.

The Tippecanoe Valley School Corporation announced shortly after the crash that it would relocate the bus stop into the trailer park where the students lived. Superintendent Blaine Conley testified Friday that the park had previously been considered for the location.  But officials were worried that the school bus could hit children in the area due to poor lighting.  The crash led to statewide changes, prompting the Legislature to increase penalties for drivers who illegally pass stopped school buses.  Shane and Brittany Ingle spent several days at the Statehouse this past year lobbying for the changes.

Via a google search, I found in this change.org petition titled "Alyssa Shepard should receive a life sentence for hitting 4 children, killing 3 of them." But it seems applicable Indiana law caps her possible sentence at 21 years.  And I would be eager to hear from readers if they think anything close to a maxed out prison sentence is appropriate in a case involving an (awful) accident. Is any prison sentence fitting?  How much should it matter that the family of the slain children seem eager for a severe term?  You be the judge.

October 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (13)

Sunday, October 13, 2019

Catching up with another round of sentencings in "Operation Varsity Blues"

Three more parents were sentencing this past week by US District Court Judge Indira Talwani in the "Operation Varsity Blues" college admissions scandal.  Here are the headlines and essential from press accounts of these latest high-profile federal sentencings:

From NBC News, "NYC man, wife both sentenced to month in prison in college admissions scam: Gregory and Marcia Abbott paid $125,000 to have their daughter's SAT and ACT altered":

A New York man and his wife were each sentenced Tuesday to a month behind bars for paying a college-admission fixer to boost their daughter's SAT and ACT scores.  Gregory and Marcia Abbott will also have to complete a year of supervised release, pay a $45,000 fine and perform 250 hours of community service each, under sentences handed down in Boston by U.S. District Court Judge Indira Talwani.

The couple had already pleaded guilty in May to a single count each of fraud and conspiracy, paying $125,000 to ring leader Rick Singer for someone to correct answers on their daughter’s college board exams....

Prosecutors had asked Talwani to sentence the Abbotts to eight months in prison each.  Defense lawyers had sought probation for the pair.  The couple paid $50,000 to have a test proctor correct their daughter's ACT exam answers in 2018, and then another $75,000 to fix her SAT.

From the Los Angeles Times, "Bay Area entrepreneur is spared prison in college admissions scandal":

If any of the parents waiting to be sentenced in the college admissions scandal stood a chance at avoiding prison, it was Peter Jan Sartorio. He was, by any measurement, a small fish in a case filled with high-profile names and deep pockets: The $15,000 the 54-year-old food entrepreneur from the Bay Area paid to rig his daughter’s college entrance exam matched the lowest amount parents shelled out in the scam.  And with neither fame nor fortune, Sartorio didn’t fit the mold of the rich, entitled parent who prosecutors said needed to be punished with time behind bars.  He also was the first to admit his guilt.

On Friday a judge in Boston decided Sartorio was, in fact, less culpable than the others.  She spared him prison time, sentencing him instead to probation and community service. 

Sartorio is the eighth parent sentenced in the case and, for all up to now, U.S. District Judge Indira Talwani decided some amount of incarceration was needed.  The judge opted to go more lightly on Sartorio than she did on the actress Felicity Huffman, who received two weeks in prison for the same offense.  Sartorio was ordered to spend a year on probation, serve 250 hours of community service and pay a $9.500 fine....

Prosecutors had sought a one-month sentence for Sartorio, saying it was clear the father of two knew at the time that what he was doing was wrong. They underscored in court papers that when it came time to pay Singer, Sartorio avoided leaving a paper trail by paying cash and made multiple withdrawals from different accounts to avoid triggering automatic reviews by banking officials.

Prior related Varsity Blues posts:

October 13, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Thursday, October 03, 2019

BigLaw partner gets one month federal time as latest parent sentenced in college admissions scandal

As reported in this CNN piece, a "former high-powered attorney at an international law firm was sentenced Thursday to one month in prison for paying $75,000 to falsely boost his daughter's ACT score as part of the college admissions scam." Here is more:

Gordon Caplan, 53, is the fourth parent to be sentenced to prison time in the scam that has led to charges against 35 parents.  Prosecutors had asked that Caplan be sentenced to eight months in prison.

The broad admissions scam consisted of a test-cheating scheme and an athlete recruitment scheme, and those who participated in the test-cheating scheme have gotten lower sentences. The actress Felicity Huffman, who paid $15,000 to participate in the test-cheating scheme, was sentenced to two weeks in prison.  Meanwhile, Stephen Semprevivo and Devin Sloane, who paid to get their children into prominent universities under the guise that they were recruited athletes, were each sentenced to four months in prison. Sixteen parents, including Caplan, have pleaded guilty to fraud conspiracy charges. 

Caplan pleaded guilty in May to fraud conspiracy and admitted to paying a fake charity run by scam mastermind Rick Singer to facilitate cheating on his daughter's ACT exam.  As part of the scheme, a paid proctor corrected answers after Caplan's daughter had completed the test.

Before his arrest, Caplan was a partner and co-chairman of the Willkie Farr & Gallagher law firm.  In 2018, The American Lawyer magazine named him one of its "Dealmakers of the Year" for guiding a series of transactions between Hudson's Bay Co., Rhône Capital and the workspace startup, WeWork. But Caplan left the law firm as a result of his involvement in the scam, the firm said in April. His license to practice law going forward is also at risk.

The Attorney Grievance Committee in New York began disciplinary proceedings against him in July, and Caplan has consented to the suspension of his law license pending those proceedings, according to a sentencing memorandum.  "To put the matter bluntly, Gordon's professional life has been destroyed," his attorney, Joshua Levy, wrote in the memorandum.

Prior related posts:

October 3, 2019 in Celebrity sentencings, Offender Characteristics | Permalink | Comments (0)

Wednesday, October 02, 2019

Texas jury imposes 10 year prison term on Amber Guyger for murdering Botham Jean

As reported in this prior post, yesterday a Dallas County jury convicted Amber Guyger of murdering Botham Jean in his apartment last year in a high-profile case that has made headlines for many months.  Today the case made another headline when, as reported here, the jury returned its sentence: "Amber Guyger sentenced to 10 years for murdering neighbor Botham Jean."  Here are some of the jury sentencing details:

Amber Guyger, the former Dallas police officer convicted of murder for fatally shooting her unarmed neighbor in his apartment, was sentenced Wednesday to 10 years in prison. Guyger, 31, learned her fate after a sentencing hearing that included emotional testimony from the family of victim Botham Jean and revelations that she shared racist and offensive texts and social media posts.

Prosecutors had asked jurors to sentence Guyger to at least 28 years — symbolic because Jean would have turned 28 last Sunday.

Guyger did not testify during her sentencing, but has the opportunity to appeal the conviction in the unique case that has gripped the city of Dallas and shattered the idea that law-abiding citizens can be safe in their own homes.

The jury was allowed to consider whether Jean's death was the result of "sudden passion," which meant Guyger acted in the heat of the moment. It carried a lesser sentence of two to 20 years behind bars....

During the sentencing hearing Wednesday, Guyger's mother, Karen Guyger, 66, testified and said that her then-boyfriend had molested Guyger when she was 6. She said she reported it to the police and he was arrested. NBC News was unable to immediately learn the outcome of the case.

Karen Guyger added that her daughter was distraught after killing Jean. "She feels very bad about it," Karen Guyger said through tears.

Dallas County prosecutors built a case through Guyger's police disciplinary records, texts and social media posts to speak to her character and argue she is undeserving of a lenient sentence.

Jurors were shown three Pinterest posts that Guyger had saved to her account and commented on. They included the picture of a military sniper with text that read: "Stay low, go fast; kill first, die last; one shot, one kill; no luck, all skill." In another Pinterest post, Guyger commented under a picture of a Minion from the movie "Despicable Me": "People are so ungrateful. No one ever thanks me for having the patience not to kill them," the comment read.

New texts were also shown to jurors between Guyger and her married work partner, Officer Martin Rivera, with whom she had been having an affair. Prosecutors had revealed their sexually explicit texts during the trial, although the defense downplayed them, saying the two were already "ramping down" their relationship by the time the shooting occurred. Rivera texted in March 2018 to Guyger: "Damn I was at this area with 5 different black officers !!! Not racist but damn." She responded: "Not racist but just have a different way of working and it shows."

Guyger texted with another officer last year about the Martin Luther King Jr. parade in Dallas. "When does this end lol," the officer wrote to Guyger. "When MLK is dead … oh wait …," she joked.

Two days before Guyger fatally shot Jean, she texted with someone who had adopted a German Shepherd. The dog's owner wrote of the animal: "Although she may be racist." Guyger responded, "It's okay .. I'm the same," and later added: "I hate everything and everyone but y'all."

During the sentencing phase, defense attorney Toby Shook asked the jury to think about how Guyger helped others as an officer, and largely glossed over the derogatory texts that prosecutors had introduced earlier. "Through these horrible series of events, she went into his apartment by mistake," Shook said. "She pulled that trigger in an instant — an instant she will regret for the rest of her life. ... She didn't go there seeking to kill him."...

The jury, made up of mostly women and people of color, deliberated for about five hours to convict Guyger and has been sequestered during the trial, which began Sept. 23. Guyger was taken into custody at the end of the first day of the sentencing phase, which started after the verdict was read Tuesday. She was booked into the Dallas County jail.

Prior related post:

October 2, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, October 01, 2019

"Association of Prior Convictions for Driving Under the Influence With Risk of Subsequent Arrest for Violent Crimes Among Handgun Purchasers"

The title of this post is the title of this notable new research authored by multiple researchers appearing in JAMA Internal Medicine.  Here is its abstract:

Importance  Alcohol use is a risk factor for firearm-related violence, and firearm owners are more likely than others to report risky drinking behaviors.

Objective  To study the association between prior convictions for driving under the influence (DUI) and risk of subsequent arrest for violent crimes among handgun purchasers.

Design  In this retrospective, longitudinal cohort study, 79 678 individuals were followed up from their first handgun purchase in 2001 through 2013. The study cohort included all legally authorized handgun purchasers in California aged 21 to 49 years at the time of purchase in 2001. Individuals were identified using the California Department of Justice (CA DOJ) Dealer’s Record of Sale (DROS) database, which retains information on all legal handgun transfers in the state.

Exposures  The primary exposure was DUI conviction prior to the first handgun purchase in 2001, as recorded in the CA DOJ Criminal History Information System.

Main Outcomes and Measures  Prespecified outcomes included arrests for violent crimes listed in the Crime Index published by the Federal Bureau of Investigation (murder, rape, robbery, and aggravated assault), firearm-related violent crimes, and any violent crimes.

Results  Of the study population (N = 79 678), 91.0% were males and 68.9% were white individuals; the median age was 34 (range, 21-49) years. The analytic sample for multivariable models included 78 878 purchasers after exclusions.  Compared with purchasers who had no prior criminal history, those with prior DUI convictions and no other criminal history were at increased risk of arrest for a Crime Index–listed violent crime (adjusted hazard ratio [AHR], 2.6; 95% CI, 1.7-4.1), a firearm-related violent crime (AHR, 2.8; 95% CI, 1.3-6.4), and any violent crime (AHR, 3.3; 95% CI, 2.4-4.5). Among purchasers with a history of arrests or convictions for crimes other than DUI, associations specifically with DUI conviction remained.

Conclusions and Relevance  This study’s findings suggest that prior DUI convictions may be associated with the risk of subsequent violence, including firearm-related violence, among legal purchasers of handguns.  Although the magnitude was diminished, the risk associated with DUI conviction remained elevated even among those with a history of arrests or convictions for crimes of other types.

October 1, 2019 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Wednesday, September 25, 2019

Texas completes its seventh execution of 2019 with killing of triple killer

As reported in this local article, a "Texas death row inmate with claims that he was intellectually disabled was executed Wednesday at the Huntsville 'Walls' Unit for stabbing his two stepsons during an attack more than 12 years ago in their North Texas home that also killed his wife." Here is more:

Robert Sparks, 45, was apologetic to his family for the September 2007 slayings of 9-year-old Harold Sublet and 10-year-old Raekwon Agnew in their Dallas home.

“I am sorry for the hard times and what hurts me is that I hurt y’all,” Sparks said in his last statement.  He was declared dead at 6:39 p.m., approximately 23 minutes after the lethal process began.

Prosecutors say Sparks' attack began when he stabbed his wife, 30-year-old Chare Agnew, 18 times as she lay in her bed.  Sparks then went into the boys' bedroom and separately took them into the kitchen, where he stabbed them. Raekwon was stabbed at least 45 times.  Authorities say Sparks then raped his 12- and 14-year-old stepdaughters.

His attorneys fought his appeal until the final minute, arguing that the jury specifically relied upon “the false testimony of prosecution expert A.P. Merillat when sentencing him to death.  The appeal also claimed that the courtroom bailiff wore a syringe tie on the date of jury deliberations, “creating an unacceptable risk of impermissible factors coming into play at trial.”

Notably, as revealed in this SCOTUS order, Justice Sotomayor thought this claim about a syringe tie justified stopping his execution.  Here is her dissent from the Supreme Court's denial of a stay for Sparks:

The allegations presented in this petition are disturbing.  On the day the jury began punishment deliberations in petitioner Robert Sparks’ capital murder trial, one of the bailiffs on duty in the courtroom wore a black tie embroidered with a white syringe — a tie that he admitted he wore to express his support for the death penalty.

That an officer of the court conducted himself in such a manner is deeply troubling.  Undoubtedly, such “distinctive, identifiable attire may affect a juror’s judgment.” Estelle v. Williams, 425 U.S. 501, 504–505 (1976).  The state habeas court, however, conducted an evidentiary hearing but did not find sufficient evidence to conclude that the jury saw the tie. I therefore do not disagree with the denial of certiorari.  I nevertheless hope that presiding judges aware of this kind of behavior would see fit to intervene in future cases by completely removing the offending item or court officer from the jury’s presence.  Only this will ensure the “very dignity and decorum of judicial proceedings” they are entrusted to uphold. Illinois v. Allen, 397 U.S. 337, 344 (1970).  The stakes — life in this case, liberty in many others—are too high to allow anything less.

September 25, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

"Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?"

The title of this post is the title of this new article authored by Hollis Whitson and Eric Samler now available via SSRN. Here is its abstract:

Consistent with the scientific evidence that proves that adolescent brain development continues well into the third decade of life, the Supreme Court may be foreshadowing the day when an actual or de facto categorical ban will bar the death penalty for offenders who were under the age of 21 years old on the date of the offense.  For almost two decades, death sentences and executions of such persons have been in steep decline — in absolute numbers and in geographical concentration. Over the same period, the minority percentage of those impacted has increased.  The authors joins the American Bar Association and other voices that have called for a categorical ban on execution of persons who were under the age of 21 years old at the date of offense.

September 25, 2019 in Assessing Graham and its aftermath, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Tuesday, September 24, 2019

Next parent sentenced in college admission scandal gets four months in federal prison

As reported in this New York Post piece, headlined "Businessman gets 4 months for bribing his son’s way into USC," the second parent sentenced in the college admissions scandal will be spending somewhat longer in prison than Felicity Huffman. Here are details:

A Los Angeles businessman who paid $250,000 in bribes to get his son into USC — lying that the kid was an international water polo star — landed four months behind bars Tuesday.

Devin Sloane, a 53-year-old water treatment company owner, had pleaded guilty in May to conniving with college admissions scamster Rick Singer and crooked University of Southern California officials to get his son into the top college....

The dad had put his son in a Speedo and swim cap and posed him with a water polo ball in the family’s backyard pool for photos to help create a fake athletic profile for the kid in the summer of 2017. With the help of his dad’s accomplices, the teen was then marketed to the university as an acclaimed international player with “the youth junior team in Italy” who participated in tournaments from Greece to Serbia and Portugal, the feds said.... The teen had never played the sport competitively.

Federal prosecutors in Boston said in court papers that Sloane also “bragged about misleading a USC development official to cover up the quid pro quo — using his dead mother as a prop for a fake donation — and even expressed outrage when high school counselors dared to question why a student who did not play water polo was being recruited to play college water polo.”

The feds had sought a year and a day in prison for Sloane, whom they said showed “moral indifference” during the scam. His lawyers argued for no jail time, instead offering that Sloane could do community service by working with kids at a private school.

Before sentencing Sloane, Judge Indira Talwani scoffed, “That’s about as tone-deaf as I’ve heard. The independent school kids are not the victims in this case,” according to WGBH-TV.

In addition to the four-month prison term, Sloane must complete 500 hours of community service and pay a $95,000 fine.

Sloane is the second parent to be sentenced in the scandal. The first, actress Felicity Huffman, received 14 days behind bars for her $15,000 bribe. Assistant US Attorney Eric Rosen said in court before Sloane’s sentencing that the dad was different from Huffman because the actress didn’t tell her daughter about the bribe scheme, thus avoiding directly involving her, while Sloane “literally threw his kid into the family pool,” according to a Law360 newswire reporter.

Rosen also noted the difference in the size of the bribes in each case.... But Sloane’s lawyers argued to Tuesday that their client didn’t completely understand that the money he was paying was a bribe.

Prior related posts:

September 24, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Sunday, September 22, 2019

"Justice sometimes needs a do-over"

The title of this post is the headline of this Washington Post commentary authored by James Forman Jr. Here are excerpts:

The D.C. Council is considering the Second Look Amendment Act, which builds on the Incarceration Reduction Amendment Act of 2016 (IRAA).  That law allows people convicted of serious crimes before they turned 18 to ask judges to review their sentences after they have served 15 years.  The proposed law expands eligibility for sentence review to all those who committed crimes before age 25 and have served at least 15 years in prison....

The core idea behind this is that everybody — including people in prison — grows and matures with time. Social science research shows that most people who commit violent crimes do so while they are young....

Of course, some people in prison remain a threat.  That’s why D.C.’s Second Look Amendment Act would not give judges carte blanche to shorten every sentence that comes before them.  Instead, the law instructs them to consider a long list of factors, including evidence of maturity and rehabilitation, medical and mental health reports, prison disciplinary records, victim impact statements and the views of the U.S. attorney’s office.

The Second Look Amendment Act offers a promising corrective to the harsh — and ineffective — practices once commonplace in courthouses across America.  But while the law has the support of the majority of the city’s elected officials, the unelected U.S. attorney is leading a campaign to scuttle it.

I’m not surprised by this opposition.... But I am disappointed by the office’s willingness to mislead the public in making its case.  Consider one of its central criticisms of IRAA and the Second Look Amendment Act: It says that the laws eliminate a judge’s ability to consider the nature of the crime when deciding whether to reduce a sentence.  In fact, the laws do nothing of the kind.  Though a change to IRAA this year removed “the nature and circumstances of the offense” from a list of factors that judges must consider, nothing in the law prevents judges from engaging in such consideration, and several provisions still in force effectively require them to do just that.

Don’t take my word for it.  The U.S. attorney’s office has made this very point in court.  Last month, when prosecutors opposed a sentence reduction in the case of United States v. Momolu Stewart, the U.S. attorney’s office told the judge that he must consider the defendant’s crime because it is “essential context for evaluating other factors that remain relevant under the IRAA.” It appears that the U.S. attorney’s office wants to have it both ways. In court, prosecutors tell judges they are logically bound to consider the crime, while in the press and community meetings, they frighten voters by telling them that the law doesn’t allow that.

The Second Look Amendment Act gives the D.C. Council a chance to restore a measure of fairness to a criminal system often lacking it.  Standing up to the U.S. attorney’s office may not be easy, but the D.C. Council did so when it rejected that office’s scare tactics and eliminated mandatory minimums for drug offenses in the 1990s. That decision now is universally admired.  If the council is willing to embrace reason over fearmongering again, I am confident the Second Look Amendment Act will be recognized as another proud accomplishment.

September 22, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, September 20, 2019

Kentucky Supreme Court hears arguments to preclude death penalty for defendants under age 21

As reported in this local article, the Kentucky Supreme Court heard a notable death penalty case yesterday.  Here are the details:

Kentucky could become the first death penalty state to put additional age restrictions on capital punishment.  Currently, 18 is the legal age allowed in the United States.  However, the Supreme Court of Kentucky could ban the death penalty for defendants who committed a crime between the ages of 18 and 21.

On Thursday, the Court heard the arguments surrounding two high profile murders out of Lexington.

In the first case, Efrain Diaz Jr. and Justin Smith are charged with the death of UK student Jonathan Krueger. Police say Krueger and a friend were walking home on East Maxwell St. in 2015 when Diaz, Smith, and Roman Gonzalez approached them.  Police say the three were armed and one of them shot and killed Krueger.  Gonzalez was 17-years-old at the time, so the death penalty cannot be applied to him. However, Diaz was 20-years-old at the time and Smith was 18.

In the second case, Travis Bredhold is accused of allegedly robbing and killing gas station attendant Mukeshbhai Patel in 2013.  Bredhold was 18-years-old at the time.

If things stand as they currently do, Bredhold, Diaz, and Smith will not face the death penalty. In Fayette County Circuit Court, Judge Ernesto Scorsone ruled the death penalty is unconstitutional for people in that age range because new science shows their brains are still developing and they lack the maturity to assess risks and control their impulses.

The defendants' lawyer, who wants the Supreme Court of Kentucky to uphold Scorsone's ruling, used the science argument in court today.  "In 2005, we thought the problem with juvenile misbehavior was simply that the brakes were defective," said defense lawyer Timothy Arnold.  "Now, we know they have their foot on the gas and they are flooring it between the ages of 18 and 20."

The Attorney General's Office argued against that, hoping to convince the Court to overturn the Scorsone's ruling. "Judge Ernesto Scorsone of the Fayette Circuit Court abused his power when he decided that 18 to 20 year olds were exempt from the death penalty," said assistant state attorney general Matthew Krygiel.

The Attorney General's Office argued that the Supreme Court of the United States set the age for capital punishment at 18 and that should be followed.  Krygiel reiterated that 18 is the legal age of an adult in the United States. "Being 18 years old, you can enlist in the Army," said Krygiel. "They give you an assault rifle and send you halfway across the world, and after some basic training on the rules of engagement, you're going to decide whether or not to pull a trigger and shoot somebody."

However, the defense lawyer believes the Kentucky Supreme Court has the power to revisit the age limit. Arnold argued that given the new science available, 18 to 21 year olds should not have capital punishment as a penalty option. "To be clear, nobody's proposing throwing a parade for anybody," said Arnold.  "What we are saying is simply that they're not eligible for the death penalty.  They'll still be eligible for life without parole or any other penalty that would be applicable to somebody who committed a serious crime. The death penalty is reserved for the worst of the worst, and science shows that they're not that."

Prior related post:

September 20, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, September 16, 2019

Noting efforts to apply reduced sentencing rules under New York's new Domestic Violence Survivors Justice Act

This press release from May 2019 reports on the signing of New York's Domestic Violence Survivors Justice Act and describes the law this way:

The Domestic Violence Survivors Justice Act ... codifies more meaningful sentence reductions for domestic abuse survivors in the criminal justice system and a key initiative in the Governor's 2019 Women's Justice Agenda.  Current law allows judges to administer indeterminate sentences for domestic violence survivors who have committed a crime only in relation to their abuser under certain circumstances.  The Domestic Violence Survivors Justice Act will build upon this law by adding offenses committed due to coercion by an abuser, as well as offenses committed against or at the behest of an abuser who does not share a household or family with the survivor — preventing further victimization of individuals who have endured domestic and sexual violence at the hands of their abusers.

But this New York Post piece, headlined "Mom found guilty of murdering boyfriend seeks lighter sentence under new law," reports on some of the challenges this law has presented in application:

In a matter of weeks, Poughkeepsie mom Nikki Addimando could become the first person in New York state to receive a lighter murder sentence under a new law that shields survivors of domestic abuse. In April, a jury found Addimando guilty of second-degree murder of 29-year-old Christopher Grover — her live-in boyfriend and the father of her two children.

She admitted shooting and killing Grover in September 2017, but said it was in self-defense after years of physical and sexual abuse. In her testimony, Addimando, 30, said Grover would use a hot metal spoon to burn her. Images of burns, lacerations and bruises on her body and face, some taken by medical staffers, were shown during the trial.

Addimando shot Grover in the head 24 hours after Child Protective Services visited their apartment, tipped off that Addimando had bruises on her body. The night of the shooting, Grover took out his gun and threatened to shoot her, telling her “he could kill me in my sleep,” she testified....

Under the new Domestic Violence Survivors Justice Act — signed by Gov. Cuomo on May 14 — Addimando, who currently faces a maximum of 25 years to life in prison, could have her sentenced reduced to five to 15 years.

A three-day hearing to convince state Supreme Court Justice Edward McLoughlin that she was a domestic violence victim concluded Wednesday.  Addimando’s friends have created a We Stand With Nikki website which calls excessive punishment “unjust.”...

The judge will render a decision in November.  “In that decision, he will advise us whether he is sentencing under the act or if he deems a conventional sentence would not be unduly harsh,” said Addimando’s lawyer Benjamin Ostrer.  “Which is ultimately within the judge’s discretion.”

The new law looks at “the extent of the abuse, the degree of the abuse and you have to be able to establish that the abuse led to whatever act that was committed,” according to defense attorney Anthony Cillis, who has handled domestic violence cases.  According to Ostrer, “There’s very little guidance in the act to instruct either the litigants or the court concerning the burden of proof.”

The first defendant to attempt to use the new law failed.  Taylor Partlow, a 26-year-old Buffalo resident who was convicted of stabbing her boyfriend in the chest in 2018, sought a sentence reduction.

The judge decided that Partlow, despite witnesses who saw her boyfriend beating her and dragging her across the floor by her hair, did not qualify.  “The abuse, No. 1, was not substantial abuse and not a significant contributing factor to your behavior,” said state Supreme Court Justice Russell Buscaglia said at a Sept. 8 hearing.  “But I do agree there was domestic abuse.”

There are many interesting substantive elements to this New York DVSJA law providing for lower sentences for domestic violence survivors convicted of offenses related to their abuse.  But I am also intrigued by how the law procedurally seems to require (without any clear proof burden) that a judge must make certain findings in order to have authority to reduce a sentence.  Structured this way, this law seems to set out a structured mitigation sentence-reduction rule that evade the jury finding and proof requirement that Apprendi jurisprudence creates for aggravating sentence-enhnancing laws.

September 16, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Just some (of many) perspectives on Felicity Huffman's sentencing

Lots of folks have lots of views on what we should make of the the sentencing of Felicity Huffman late last week to 14 days in incarceration in the college bribery scandal. Here are just a sampling of some of the pieces that caught my eye:

From CNN, "John Legend says prison is not always the answer after Felicity Huffman's sentence"

From Walter Palvo at Forbes, "Felicity Huffman And America's Failing Criminal Justice System"

From Fox News, "Felicity Huffman's 14 day prison sentence in college admissions scam sparks outrage on social media"

From Fox News, "Felicity Huffman's prison sentence 'more of a burden on the jail system' than on the actress: expert"

From David Oscar Marcus at The Hill, "Felicity Huffman's 14-Day Sentence is Unjust — Because It's Too High"

From Ellen Podgor at White Collar Crime Prof Blog, "More Varsity Blues — Privilege and Perspective"

To add my two cents, I will just say that I continue to be disappointed at our system's and our society's general failure to treat and view any sentencing terms other than imprisonment as "real punishment." Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

Prior related posts:

September 16, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

The impact of the FIRST STEP Act as told through one (all-too-typical) case

Jesse Wegman has this notable new New York Times piece headlined fully "‘All You Can Do Is Take Care of Your End’: For one inmate serving a life sentence, a new federal law gave hope where there had been none." I highly recommend the piece in full, and here are some extended excerpts:

Imagine that at the age of 28, you’re told you are going to spend the rest of your life in prison with no chance of release. What would you do with all that time?

There’s no shame in admitting you’d want to throw in the towel.  It’s a rational reaction to a hopeless situation: Why bother working to improve yourself, learning something new or making amends if nothing you do will ever make a difference?

Gary Rhines, now 46, had every reason to choose that route, after receiving a mandatory sentence of life without parole in 2004 for being a repeat drug offender.  As a lifer, Mr. Rhines was last in line for all prison programming; no one cared whether he participated or not.  But that didn’t stop him.  He earned his high school equivalency diploma.  He enrolled in drug-treatment and anger-management programs, learned industrial painting and how to operate a forklift.  He received a certificate in a culinary-arts program and worked in the prison chapel.

“All you can do is take care of your end,” Mr. Rhines told me recently in a telephone interview. “I had a list of things that were very important to my success.” If he didn’t do them, he said, “it was me giving up on myself.”

This summer, all those years of work paid off. At a hearing on July 24 in a Harrisburg, Pa., Federal District Court, Judge John E. Jones III resentenced Mr. Rhines to time served — in his case, 18 years, which includes nearly three years of pretrial detention.

The judge was able to impose that sentence thanks to the First Step Act, a new federal law that alleviates some of the most draconian punishments handed down under a string of federal criminal laws and sentencing guidelines passed in the 1980s and 1990s....

The crime that landed Mr. Rhines in prison for life was relatively minor — he was charged with participating in the sale, in Pennsylvania, of 66 grams of crack cocaine, a little more than the weight of a pack of M&Ms.  The crime involved no weapon and no violence. One of his co-defendants received a sentence of nine to 23 months.  But Mr. Rhines had been convicted of selling small amounts of drugs twice before, and that made all the difference: Under the sentencing laws, a third drug conviction involving more than 50 grams of crack meant a mandatory sentence of life without parole....

In requiring stunningly long sentences, the crime bills took power away from judges to make decisions based on a defendant’s unique circumstances — that is, to judge — at the moment such discretion was most needed.  Mr. Rhines’s judge might have taken into account not only the nonviolent nature of his crime, but also that by the age of 7, he was watching his mother use heroin and get physically abused by multiple boyfriends.  Or that because of her drug addiction, he and his brothers and sisters went for stretches without food, heat, electricity or hot water.  Or that he stopped going to school at 11 to provide for his siblings by working as a bag boy at a grocery store.  Or that at age 12, he was forced to sell drugs in local crack houses to pay off his mother’s drug debts and was warned that she would be beaten if he didn’t. In other words, from the time he was a little boy, Gary Rhines never stood a chance....

Congress finally began to reel in some of its longest and most unjust sentences in 2010, when it passed the Fair Sentencing Act, which reduced a glaring disparity in punishments for crimes involving crack and powder cocaine. That should have been good news for inmates like Mr. Rhines, because under the new law, the amount of crack he was convicted of selling no longer triggered a mandatory life sentence. The problem was that the 2010 law applied only to future cases, not past ones.

This is where the First Step Act comes in.  Signed last December by President Trump, it slashed the length of drug sentences — for example, the top mandatory-minimum punishment for a third-strike drug offense is now 25 years rather than life. The law also gave judges more power to reduce individual sentences and authorized $75 million in annual funding for prison programs that will help prepare inmates for release.  Most important, it made the 2010 sentencing law retroactive, which helps the thousands of inmates, like Mr. Rhines, who have been serving absurdly long sentences under a law that Congress itself said was unjust nearly a decade ago.

At Mr. Rhines’s resentencing hearing in July, where he recounted his brutal childhood, Judge Jones noted the painfully slow evolution of America’s criminal-justice system. “It’s taken essentially a quarter century for policymakers to figure out the fundamental unfairness” of those harsh 1980s and 1990s drug laws, the judge said.  He also noted that the trial judge in Mr. Rhines’s case, James McClure, had been frustrated at having his hands tied by the law. “That deprived Mr. Rhines of the determination of a very fair jurist,” Judge Jones said, “who carefully evaluated every case that came before him.” (Judge McClure died in 2010.)

Finally, Judge Jones took note of Mr. Rhines’s self-rehabilitation in an indifferent environment. “Without any hope,” the judge said, “you participated in a number of these programs, which is very impressive to me.”...

The prosecutor on the case requested that the judge resentence Mr. Rhines to 30 years, which was the term recommended under federal sentencing guidelines. Judge Jones declined. “I just don’t know rationally how anybody can contend with the circumstances of this case, including Mr. Rhines’s personal circumstances,” the judge said, and conclude “that they warrant a 30-year sentence for 66.6 grams of cocaine. That defies credulity and logic, in my view.” In an email further explaining his decision, Judge Jones told me that he considered Mr. Rhines to be “the very face of the First Step Act” and said it was “unjust, and in fact ludicrous, to have this model inmate spend additional time in federal prison.”

As of August, nearly 1,700 people, 91 percent of them black like Mr. Rhines, have gotten new, shorter sentences under the First Step Act, according to a report by the United States Sentencing Commission. The average reduction is nearly six years, bringing the average sentence of these inmates down from about 20 years to 15 — hardly flinging open the prison gates. But it is part of the larger shift toward a more humane criminal-justice system that has swept the country over the past decade and helped shrink the federal prison population to about 180,000 today, from a high of 220,000 in 2013.

This is real progress, and it is why the First Step Act has been praised as a rare bipartisan success story — one all the more remarkable for the political delicacy of its subject matter.  Mr. Trump himself called the older drug sentences “very unfair,” particularly to black inmates like Mr. Rhines.

Still, the law comes up short in important ways. The biggest is that its new reductions of sentences for drug crimes do not apply to past cases. That’s an especially glaring omission given that the First Step Act fixed the identical problem in the 2010 law. In other words, Congress failed to heed its own lesson: If a sentence is determined to be unjust, isn’t it unjust in all situations? Why should it matter when a prisoner was convicted?

This well-told story helps put some more names and faces to what the FIRST STEP Act has helped achieved.  But the piece also highlights just how far we still have to go to truly achieve new attitudes and new approaches to crime and punishment.  I cannot help but still see dark facts in this often bright story: the dark fact that federal prosecutors in 2019 still urged an additional dozen years in federal prison for the sale of less than 2.5 ounces of crack, the dark fact that Congress could not bring itself to include at least modest measure of retroactivity with its modest reforms of extreme mandatory minimums in the FIRST STEP Act, and the dark fact that there are so many human variations on Mr. Rhimes among the tens of thousands of federal prisoners whose stories will not get so well told.

September 16, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Friday, September 06, 2019

After gun mandatories deemed unconstitutionally severe, former Blackwater guards get much lower terms at federal resentencing

This New York Times article, headlined "Three Ex-Blackwater Guards Are Resentenced in Iraq War Massacre," reports on high-profile resentencings that followed a (too-rare) ruling that the application of a severe federal mandatory minimum statute violated the Eighth Amendment.  The DC Circuit's significant Eighth Amendment ruling from 2017 is discussed in this post, and here is part of the press report on the resentencing:

Three former Blackwater security contractors were sentenced on Thursday to roughly half of their original 30-year prison terms for the deadly 2007 shooting of unarmed Iraqi civilians in Baghdad’s Nisour Square, widely seen as one of the darkest moments of the Iraq war.

The three former contractors — Dustin L. Heard, Evan S. Liberty and Paul A. Slough — had been convicted in 2014 of multiple counts of manslaughter for their roles in the massacre.  But in 2017, a federal appeals court vacated their sentences, saying the trial judge, Royce C. Lamberth of the Federal District Court for the District of Columbia, erred in invoking a law that requires 30-year sentences for such offenses that involve machine guns....

Prosecutors on Thursday nevertheless asked Judge Lamberth to resentence Mr. Slough to 30 years, and the other two men to slightly less.  Defense lawyers asked him to instead sentence their clients to the roughly five years they had already served.  The three defendants, dressed in orange prison garb, asked to be sent home to their families.

But after a hearing that lasted most of the day and played out before a courtroom packed with dozens of family members, friends and other supporters of the men, the judge rejected those ideas. He instead sentenced Mr. Heard to 12 years and seven months; Mr. Liberty to 14 years; and Mr. Slough to 15 years. In the United States, Judge Lamberth said, “We hold our armed forces and our contractors accountable for their actions.”...

The government had hired Blackwater Security to escort State Department officials through a chaotic war zone in Iraq.  Shortly after the convoy pulled into Nisour Square, the contractors began shooting civilians with machine guns and firing grenades. While the contractors claimed they had come under fire by insurgents, prosecutors said — and a jury agreed — that the evidence showed there had been no incoming fire.

Prosecutors at the hearing on Thursday emphasized that the firing went on for 20 minutes, indicating that a moment of panic had turned into reckless disregard for human life. But they acknowledged that the security contractors had stopped firing at different times.  Prosecutors said that Mr. Slough was jointly responsible for 13 of the deaths and 17 of the wounded, Mr. Liberty for eight of the deaths and 11 of the wounded, and Mr. Heard for six of deaths and 11 of the wounded.

The jury found that the chaotic hail of machine-gun fire and grenades targeting civilians began when another contractor, Nicholas A. Slatten, shot the driver of a white Kia without provocation. Mr. Slatten was retried and convicted of first-degree murder last year, and Judge Lamberth sentenced him last month to life in prison.

During the hearing, Judge Lamberth praised the character of the three defendants before him, calling them “fine young men” but for the aberration of their poor judgment and reckless actions in Nisour Square. But he said he had to balance that assessment against the significant loss of life that resulted from their recklessness and poor judgment, as well as the need to uphold the rule of law.

While the defense objected to the sentences, making clear that another appeal was likely, they and the judge also discussed the possibility that he would recommend to the Bureau of Prisons that it waive certain security restrictions associated with manslaughter convictions.  If those are waived, the three could benefit from a rule permitting certain inmates with less than 10 years left on their sentences to serve the remainder in minimum-security prison camps....

One of the legal issues facing the judge was prosecutors’ contention that each of the defendants should receive an additional 10 years under the law that enhances penalties for crimes involving the use of a firearm.  Defense lawyers said that law should not apply to a war zone case for the same reason that the appeals court rejected the use of the machine-gun law in the case, and Judge Lamberth agreed with the defense.

Still, the judge also quoted lines from the appeals court’s 2017 opinion saying the defendants can and should be held accountable for the death and destruction they had caused: “We by no means intend to minimize the carnage attributable to Slough, Heard and Liberty’s actions.  Their poor judgments resulted in the deaths of many innocent people.  What happened in Nisour Square defies civilized description.”

Prior related post:

September 6, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, September 04, 2019

USA Today starts series on non-violent lifers

Eileen Rivers has this new lengthy piece in USA Today, which notes that this is "the first installment in a series about prisoners serving life sentences for non-violent crimes ... being published in conjunction with the Buried Alive Project."  This first piece is fully titled "The graying of America's prisons: 'When is enough enough?'" and "Inmates over 55 are among the fastest growing population. They burden prisons and taxpayers, but pose the lowest threat to society."  Here is an excerpt:

In 1990, a federal judge sentenced [Wayne] Pray to life in prison without parole, plus three 25-year stints for, among other things, cocaine and marijuana possession and distribution.

Now 71, Pray has been locked up for three decades on nonviolent offenses, most recently at the federal prison in Otisville, New York.  He is one of about 20,000 older federal inmates — prisoners over 55 who are among the fastest growing population in the federal system. Many of them were given life amid the war on drugs of the 1990s.

Mandatory life sentences mean a federal prison population that is graying in large numbers.  This group puts the greatest financial burden on U.S. prisons, while posing the lowest threat to American society.

Pray's status, and that of others aging in the system, presents tough questions: How old is too old to remain incarcerated? Is Pray, at 71, the same threat he was at 41?  And if he isn't, then why is he still behind bars?...

From 1993 to 1996, nearly 800 drug offenders were sentenced to life without parole in federal prison, according to the Buried Alive Project, which tracks rates by year and state.  That's 57% higher than during the previous four-year period.

Prosecutors wield a lot of power when it comes to sentencing. It isn't uncommon for attorneys to push plea deals on defendants in exchange for information.  And the rejection of those deals sometimes means elevated charges that result in mandatory minimum federal sentences, including life....

While the First Step Act, passed by Congress last year, changes mandatory minimums for some federal offenders, not all will be helped by it, including inmates such as Pray who were convicted in cases involving powder cocaine instead of crack....

Pray says his brother started selling drugs at age 14 and was dead by 31. Court documents show that Pray was dealing by the time he was in his late 20s.  He used drug money to open up other businesses, according to Coleman. Pray says at one point he owned two used car dealerships and was a fight promoter.  "The lifestyle itself becomes addictive," Pray says.

The charges that led to his life sentence involved more than 250 kilograms (550 pounds) of cocaine and about 200 pounds of pot.  He maintains that the "kingpin" charge was trumped up, the result of a rejected plea deal. Prosecutors wanted information about other people, including politicians, that Pray says he refused to give....

Pray has applied for clemency twice to no avail.  Yet he still holds out hope that he'll be able to spend his final days with his family....  "I'm not trying to justify what I did. But let the punishment fit the crime," Pray said during our phone interview. "When is enough enough?"

September 4, 2019 in Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, August 28, 2019

"Translating Crimes"

The title of this post is the title of this notable new article now available on SSRN authored by Eric Fish.  Here is its abstract:

Criminal history is all-important in the criminal and immigration systems.  A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, be targeted for immigration enforcement, lose or keep their immigration status, and face or avoid deportation, among many other consequences.  Yet despite the vital role that criminal history plays, judges, prosecutors, and other government lawyers know surprisingly little about the past crimes of the people they process.  Factually rich accounts of a person’s prior convictions are rarely available, and the system instead relies on rap sheets that record minimal facts — the charge, the date of conviction, and the sentence imposed.

Because of this information scarcity, the criminal and immigration systems use criminal history heuristics when determining the consequences of prior convictions.  Such heuristics include the number of past convictions, the types of crime charged, and the sentences imposed.  These heuristics are inputted into mechanical formulas that translate them into often-severe consequences like deportations and mandatory minimum sentences.  This way of using criminal history creates a number of serious problems in our system.  It causes irrational and unjust results, renders the system arbitrary to the people being processed, exacerbates racial disparities, and makes access to a competent lawyer vital.  This Article diagnoses these problems and proposes a number of reforms, including ending the convention of “time served” sentencing and rewriting state criminal laws to limit their immigration consequences.

August 28, 2019 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, August 27, 2019

Making the case for exempting juvenile offenders from being subject to adult mandatory minimums

Nila Bala and James Dold have this new commentary at The Hill under the headline "Mandatory minimums harm children." Here are excerpts:

An estimated 76,000 children are tried as adults every year.  These children end up in a system that is poorly equipped to serve them.  Children are fundamentally different from adults, which is why we do not let children vote in elections, join the military, or buy cigarettes.  Young people often make bad decisions without pausing to think about the consequences. But because their brains are still developing, they also have an incredible capacity for change, and who they are when they are teenagers is certainly not who they will be for the rest of their lives.  This is why the Supreme Court, in a series of rulings, has struck down the use of the death penalty for those under 18 and declared life without parole an impermissible sentence for the vast majority of children.

Yet, many children still face incredibly long sentences that are harmful to them and provide no commensurate benefit to public safety.  A few decades ago, a group of academics propagated the false notion that some young people could not be rehabilitated because they were so evil and remorseless that they should be termed “superpredators.”  This idea has been completely debunked.  Unfortunately, the bad policies that allowed children to be easily transferred into the adult criminal justice system in the wake of the superpredator era had a lasting impact across the country.  Children continue to be subject to lengthy mandatory minimum sentences when they are tried as adults, and their status as children is often not considered during sentencing.

The adult system is not the right place for children, who grow up without educational opportunities, age appropriate services, or treatment if they are placed in it.  In the adult system, they face far greater risks of physical and sexual abuse, and are far more likely to commit suicide than youth committed to the juvenile justice system.  Long sentences driven by mandatory minimums further compound the harm these children suffer.  When we prosecute children in the adult system, where the focus is on punishment instead of on treatment, we continue failing to address why kids end up committing crimes in the first place....

As the law stands now, the hands of judges are tied when sentencing under statutes that require harsh mandatory minimums that do not consider the capacity of children to change.  Under House Resolution 1949, however, judges would be required to consider how children are fundamentally different from adults and would be authorized, but would not be required, to depart up to 35 percent from the otherwise applicable mandatory minimum sentence.  Similar legislation has been championed at the state level by members of both parties, and most recently by Republican state lawmakers in Arkansas and Nevada.

I believe this commentary means to reference this bill, H.R. 1949.  But the text of the bill, though it does allow a judge "to impose a sentence that is 35 percent below a level established by statute as a minimum sentence so as to reflect the juvenile’s age and prospect for rehabilitation," does not actually expressly require a judge to consider how juvenile offender are different than adult.  

August 27, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Saturday, August 24, 2019

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

August 24, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, August 22, 2019

Sixth Circuit judge in separate opinion makes case for Eighth Amendment precluding execution of persons under 21 at time of murder

A helpful reader made sure I saw the notable concurring opinion of Sixth Circuit Justice Stranch at the end of a panel opinion rejecting a capital defendant's habeas appeal in Pike v. Gross, No. 16-5854 (6th Cir. Aug. 22, 2019) (available here). Here are the first and last paragraph of Judge Stranch's opinion, which highlight who readers might want to check out what appears in between:

I join the opinion in this case but write separately because it presents an issue with which our society must be concerned — whether 18-year-olds should be sentenced to death. Had she been 17 rather than 18 at the time of her crime, like her codefendant Tadaryl Shipp, Christa Pike would not be eligible for the death penalty....

For these reasons, I believe that society’s evolving standards of decency likely do not permit the execution of individuals who were under 21 at the time of their offense.  But, because we review this case under the strictures of AEDPA, we may grant Pike relief only if the state court’s adjudication of her case was either (1) contrary to or unreasonably applied Supreme Court precedent, or (2) “resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).  And the Supreme Court has not extended Roper to 18-year-olds.  I therefore reluctantly concur because I agree that the state court’s decision denying Pike’s postconviction petition did not unreasonably apply Strickland’s prejudice prong.

August 22, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Monday, August 19, 2019

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

August 19, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, August 16, 2019

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

August 16, 2019 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, August 15, 2019

"Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system."

The title of this post is the title of this new piece authored by Bryan Stevenson from the New York Times magazine. Based on the title and author, regular readers should know this is a must-read in full.  Here is an excerpt:

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned.  In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole.  Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana.  And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery....

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes.  After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.”  The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.”  Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control....

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota.  In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton.  In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal.  It also cultivated a tolerance for employing any level of brutality in response.  In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him.  A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade.  The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge.  Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same.  It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere.  New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black.  All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white.  In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.

Inside courtrooms, the problem gets worse.  Racial disparities in sentencing are found in almost every crime category.  Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses.  Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

The smog created by our history of racial injustice is suffocating and toxic.  We are too practiced in ignoring the victimization of any black people tagged as criminal; like Woods Eastland’s crowd, too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.

August 15, 2019 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (4)

Tuesday, August 13, 2019

"After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct"

The title of this post is the title of this notable new paper authored by Paul Robinson and Muhammad Sarahne now available via SSRN. Here is its abstract:

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals.  After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment.  This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense.

The essay considers how one might operationalize a system for giving special accommodation to such offenders.  Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

August 13, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, August 03, 2019

"Consequences of mental and physical health for reentry and recidivism: Toward a health‐based model of desistance"

The title of this post is the title of this recent Criminology article authored by Nathan Link, Jeffrey Ward and Richard Stansfield. Here is its abstract:

During the last few decades, criminologists have identified several adult roles and statuses, including employment, positive family relations, and economic stability, as critical for promoting successful reintegration and desistance.  Very few researchers, however, have investigated the conditions that serve to bring about these transitions and successes crucial for behavior change.  As a complement to a burgeoning amount of literature on the impact of incarceration on health, we emphasize the reverse: Health has important implications for reentry outcomes and reincarceration.

Informed by multiple disciplines, we advance a health‐based model of desistance in which both mental and physical dimensions of health affect life chances in the employment and family realms and ultimately recidivism.  Investigating this issue with longitudinal data from the Serious and Violent Offender Reentry Initiative (SVORI) and structural equation models, we find overall support for the health‐based model of desistance.  Our results indicate several significant pathways through which both manifestations of health influence employment, family conflict, financial problems, and crime and reincarceration.  The findings highlight the need for implementation of correctional and transitional policies to improve health among the incarcerated and avert health‐related reentry failures.

August 3, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Monday, July 29, 2019

"The Effect of Public Health Insurance on Criminal Recidivism"

The title of this post is the title of this notable new empirical paper recently posted to SSRN and authored by Erkmen Giray Aslim, Murat Mungan, Carlos Navarro and Han Yu. Here is its abstract:

The prevalence of mental health and substance abuse disorders is high among incarcerated individuals.  Many ex-offenders reenter the community without receiving any specialized treatment and return to prison with existing behavioral health problems.  We consider a Beckerian law enforcement theory to identify different sources through which access to health care may impact ex-offenders' propensities to recidivate, and empirically estimate the effect of access to public health insurance on criminal recidivism. 

We exploit the plausibly exogenous variation in state decisions to expand Medicaid under the Affordable Care Act.  Using administrative data on prison admission and release records from 2010 to 2016, we find that the expansions decrease recidivism for both violent and public order crimes.  In addition, we find that the public coverage expansions substantially increase access to substance use disorder treatment.  The effect is salient for individuals who are covered by Medicaid and referred to treatment by the criminal justice system. These findings are most consistent with the theory that increased access to health care reduces ex-offenders' perceived non-monetary benefits from committing crimes.

I think the punchy way to pitch these findings would be to say that Obamacare reduces crime and limiting or eliminating Obamacare risks increasing crime.  Very interesting (though not all that surprising for folks who think through issues at the intersection of criminal justice and health care access).

July 29, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 16, 2019

US House Subcommittee hearing spotlights "Women and Girls in the Criminal Justice System"

Last week, as noted over at my marijuana blog, the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of the US House of Representatives conducted a notable hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."   This week, that subcommittee continue to spotlight the need for criminal justice reform through a hearing this morning titled "Women and Girls in the Criminal Justice System."  This ABC News piece, headlined "House Judiciary subcommittee meets on growing population of women behind bars," provides a an effective summary of parts of the hearing, and here are excerpts:

Like 80% of women incarcerated in the U.S., Cynthia Shank was a mother when she went to prison.  Shank was pregnant when she was indicted and like many incarcerated women, she served time for nonviolent offenses -- in her case, she was sentenced to 15-years for federal conspiracy charges related to crimes committed by her deceased ex-boyfriend.  Nearly 150,000 women are pregnant when they are admitted into prison.

Shank, along with other prison reform advocates, appeared in front of the House Judiciary subcommittee for a hearing on women in the criminal justice system to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform.  "Prison destroyed my small young family," Shank said.  "Prison is set up to separate and destroy bonds."...

Piper Kerman, author of the novel turned Netflix series "Orange is the New Black," also shared what her experience was like while imprisoned and why there needs to be a shift in policy to directly impact the growing number of women in prison.  "Policies, not crime, drive incarceration," Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative.  The total number of men incarcerated in state prisons fell more than 5% between 2009 and 2015, while the number of women in state prisons fell only a fraction of a percent, 0.29% "In a number of states, women's prison populations are growing faster than men's, and in others, they are going up while men's are actually declining," said Aleks Kajstura, legal director of the Prison Policy Initiative.

The war on drugs is what many of the panelists and lawmakers pointed to as part of the reason there are such high rates of women incarcerated.  "Much of the growth of women in prisons can be attributed to the war on drugs," said Jesselyn McCurdy, deputy director of the Washington legislative office for the American Civil Liberties Union.

"Addressing this unfair issue is important because the war on drugs appears to be a large driver of the incarceration rates of women, as illustrated by the fact that the proportion of women in prison for a drug offense has increased from 12% in 1986 to 25% in more recent years." Rep. Jerry Nadler, D-N.Y., said.

An estimated 61% of women are incarcerated for nonviolent crimes, according to The Sentencing Project.  McCurdy touched on what many women, including Shank, fall victim to in the criminal justice system -- conspiracy charges as they relate to a significant other, also known as the "Girlfriend problem."

"You don't have to necessarily have dealt drugs, you have to have some role in a conspiracy and that role is very little," McCurdy said. "You can pick up the phone in your house that you live in with your partner and that's enough to implicate you in a conspiracy."

Family trauma was also a major focal point of the hearing, as lawmakers turned to the panel to seek their insight on the best ways to address the trauma of family separation. Shank told the subcommittee members that while she was incarcerated in a federal prison in Florida, she was only able to see her children once a year and that her children would beg her not to hang up the phone when they spoke.  "I'm an adult, I accepted the consequences of my sentencing, but my children were the innocent victims of this," Shank said.

The committee also spent time discussing the relationship between male prison guards and female inmates, with both Shank and Kerman saying that there needs to be more attention on the safety of women who are behind bars with male guards. "I never felt safe changing," Shank said.  "Guards know your schedule, and if they want to single you out they will."

Panelists were also asked to speak on the need of bail reform for women behind bars, as 1 in 4 women who are incarcerated have not been convicted and over 60% of women who could not make bail are parents of minor children, according to the Prison Policy Initiative.  Kerman said that there needs to be primary care consideration in the courts that require judges to consider the impact on families in both pre-trial hearings and sentencing.

"Women will no longer be overlooked in the criminal justice conversation," Rep. Karen Bass, D-Calif., said. "We must have an overall approach to criminal justice reform that specifically considers women.

The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.  And Piper Kerman's written testimony has a first footnote that provides this statistical basis for heightened concerns about the modern treatment of women and girls in the criminal justice system: "Since 1978, women’s state prison populations have grown 834%, while men’s state prison populations have grown 367%."

July 16, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, July 11, 2019

"Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break?"

The title of this post is the title of this notable new paper authored by Stephen Morse now available via SSRN. Here is its abstract:

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote.  For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review.

After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break.  If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable.  Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

July 11, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, July 09, 2019

En banc Ninth Circuit works through Eighth Amendment jurisprudence and juvenile resentencing under federal guidelines

In this post around this time last year, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The original ruling in Briones had a split Ninth Circuit panel affirming the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.   But after granting en banc review, the Ninth Circuit has now vacated the LWOP sentence and remanded for resentencing by a 9-2 vote.  The new majority opinion in Briones, available here, has a lot to say about Eighth Amendment jurisprudence and juvenile sentencing, and here are a few excerpts:

Taken together, Miller, Montgomery, and Pete make clear that a juvenile defendant who is capable of change or rehabilitation is not permanently incorrigible or irreparably corrupt; that a juvenile who is not permanently incorrigible or irreparably corrupt is constitutionally ineligible for an LWOP sentence; and that a juvenile’s conduct after being convicted and incarcerated is a critical component of the resentencing court’s analysis....

We reaffirm that when a substantial delay occurs between a defendant’s initial crime and later sentencing, the defendant’s post-incarceration conduct is especially pertinent to a Miller analysis. See id.; see also Montgomery, 136 S. Ct. at 736 (“The petitioner’s submissions [of his reformation while in prison] are relevant . . . as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation.”).  The key question is whether the defendant is capable of change.  See Pete, 819 F.3d at 1133.  If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option.

The district court’s heavy emphasis on the nature of Briones’s crime, coupled with Briones’s evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.  We do not suggest the district court erred simply by failing to use any specific words, see Montgomery, 136 S. Ct. at 735, but the district court must explain its sentence sufficiently to permit meaningful review.  See Carty, 520 F.3d at 992 (“Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review . . . . What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case . . . .”).  When a district court sentences a juvenile offender in a case in which an LWOP sentence is possible, the record must reflect that the court meaningfully engaged in Miller’s central inquiry.

And here is a concluding substantive paragraph from the dissent:

Thus, despite evidence of Briones’s rehabilitation, youth when the heinous crimes were committed, and youth-related characteristics, the record supports that Briones’s crimes reflect permanent incorrigibility, as opposed to transient immaturity. The district court therefore imposed a permissible sentence.  Notably, the majority does not conclude that a life without parole sentence is impermissible in this case. Instead, although the majority claims otherwise, the majority’s opinion vacates the district court’s sentence because the district court failed to find that Briones was permanently incorrigible. But as discussed above, there is no requirement for the district court to make any specific findings before imposing a life without parole sentence.  In short, the majority, citing Montgomery, states that it “do[es] not suggest the district court erred simply by failing to use any specific words,” Maj. at 19.  But in clear contravention of Montgomery, that is precisely why it has reversed. We remand for the district court to do again what it has already done.

July 9, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 03, 2019

Spotlighting challenges at intersection of trying kids as adults and sexual offenses

The decision to try a juvenile offender as an adult often serves as a kind of sentencing decision. That reality, plus the always wrought policy and politics surrounding sex offenses, leads me to be interested in reactions to this new New York Times piece headlined "Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says." Here are excerpts from the lengthy front-page story:

The 16-year-old girl was visibly intoxicated, her speech slurred, when a drunk 16-year-old boy sexually assaulted her in a dark basement during an alcohol-fueled pajama party in New Jersey, prosecutors said.

The boy filmed himself penetrating her from behind, her torso exposed, her head hanging down, prosecutors said. He later shared the cellphone video among friends, investigators said, and sent a text that said, “When your first time having sex was rape.”

But a family court judge said it wasn’t rape. Instead, he wondered aloud if it was sexual assault, defining rape as something reserved for an attack at gunpoint by strangers.  He also said the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout.  Prosecutors, the judge said, should have explained to the girl and her family that pressing charges would destroy the boy’s life.

So he denied prosecutors’ motion to try the 16-year-old as an adult. “He is clearly a candidate for not just college but probably for a good college,” Judge James Troiano of Superior Court said last year in a two-hour decision while sitting in Monmouth County.

Now the judge has been sharply rebuked by an appeals court in a scathing 14-page ruling that warned the judge against showing bias toward privileged teenagers.  In doing so, the appeals court cleared the way for the case to be moved from family court to a grand jury, where the teenager, identified only as G.M.C. in court documents, will be treated as an adult. New Jersey law allows juveniles as young as 15 to be tried as adults when accused of serious crimes, and the grand jury will weigh whether to indict him on the sexual assault accusation.

In recent years, judges across the country have come under fire for the way they have handled sexual abuse cases. One of the most notorious was in 2016, when a judge in California sentenced a Stanford University student to six months in jail after he was found guilty of sexually assaulting an unconscious woman.  After an intense public backlash, California voters recalled the judge.

Judge Troiano, who is roughly 70, was one of two family court judges whom appeals courts in New Jersey have criticized in recent weeks over relatively similar issues.

In the other case, the appellate division reversed another judge’s decision not to try a 16-year-old boy as an adult after he was accused of sexually assaulting a 12-year-old girl in 2017.  The second family court judge, Marcia Silva, sitting in Middlesex County, denied a motion to try the teenager as an adult and said that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”

The appellate judges also upbraided Judge Silva, overturning her decision and noting that the teenager could be culpable because the 12-year-old was not old enough to provide consent in the first place.

The judge in Monmouth County, Mr. Troiano, was scolded by the appellate court, according to the panel’s decision.  “That the juvenile came from a good family and had good test scores we assume would not condemn the juveniles who do not come from good families and do not have good test scores from withstanding waiver application,” the panel wrote in its decision.

Family court cases are typically closed to the public, but the judges’ comments surfaced in June when the appeals court decisions were made public, joining a series of contentious sexual assault cases that have ignited outrage over a legal system that advocates for victims say is warped by bias and privilege.

In the first case, heard by Judge Troiano, it is unclear from court documents when and specifically where in New Jersey the incident involving the two 16-year-olds took place. But prosecutors said it occurred during a party packed with 30 other teenagers.  The case was highlighted by a New Jersey radio station, 101.5....

In an interview, Christopher J. Gramiccioni, the county prosecutor said, “This is conduct that should be punished in adult court.” “We subscribe to the idea that the juvenile system is supposed to be rehabilitative,” he said.  “But when you’re dealing with charges as serious as these, it’s a whole different ball of wax.”...

Mr. Gramiccioni said New Jersey has a progressive juvenile system: Juvenile cases are not shown to juries, juvenile records are kept from public view and sentences are typically more lenient than when a person is tried as an adult.  A recent law made it illegal to try defendants younger than 15 as adults.

July 3, 2019 in Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

July 3, 2019 in Offender Characteristics, On blogging, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

July 3, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 28, 2019

In federal prosecution following state conviction, Charlottesville killer James Fields gets LWOP sentence

As reported in this Reuters piece, headlined "Charlottesville neo-Nazi sentenced to life, judge says 'too great a risk' to release," a very high-profile defendant who has been subject to both state and federal prosecutions for a very high-profile crime, received his federal sentence today.  Here are the details: 

A federal judge imposed a life sentence on the self-described neo-Nazi who killed Heather Heyer by crashing his car into a crowd of counterprotesters in Charlottesville, Virginia, after a white supremacist rally, saying release would be “too great a risk.”

The 22-year-old neo-Nazi, James Fields of Maumee, Ohio, was sentenced to life without the possibility of parole. He had sought a lesser sentence, apologizing after the court viewed video of him plowing his car into a crowd after the Aug. 12, 2017, “Unite the Right” rally, also injuring 19 people.

U.S. District Judge Michael Urbanski, was unmoved by his plea, saying he had had to avert his eyes while the court viewed graphic video of the attack that showed bodies flying into the air as Fields crashed into them. “Just watching them is terrifying,” Urbanski said. “The release of the defendant into a free society is too great a risk.”...

Heyer’s parents described the grief of losing their daughter. “It was an incident I will never fully recover from,” said Heyer’s father, Mark Heyer. Her mother, Susan Bro, described herself as “deeply wounded” and recounted crying uncontrollably at times.

Ahead of Friday’s sentencing hearing, prosecutors noted that Fields had long espoused violent beliefs. Less than a month before the attack he posted an image on Instagram showing a car plowing through a crowd of people captioned: “you have the right to protest but I’m late for work.”

Even after the attack, Fields remained unrepentant, prosecutors said, noting that in a Dec. 7, 2017, phone call from jail with his mother, he blasted Bro for her activism after the attack. “She is a communist. An anti-white liberal,” Fields said, according to court papers filed by prosecutors. He rejected his mother’s plea to consider that the woman had “lost her daughter,” replying, “She’s the enemy.”

Fields pleaded guilty to the federal hate crime charges in March under a deal with prosecutors, who agreed not to seek the death penalty.

He was photographed hours before the attack carrying a shield with the emblem of a far-right hate group. He has identified himself as a neo-Nazi.

Fields’ attorneys suggested he felt intimidated and acted to protect himself. They asked for mercy, citing his relative youth and history of mental health diagnoses.

Intriguingly, this report completely leaves out the fact that James has also been subject to prosecution in Virginia state court, which resulted in a jury conviction and a recommendation of a 419-year plus life sentence.  The details of these proceedings are covered in some prior posts linked below.

Prior related posts:

June 28, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, June 26, 2019

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

June 26, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, June 23, 2019

"Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst"

The title of this post is the title of this new paper authored by Corinna Lain and available via SSRN. Here is its abstract:

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place?  This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question.

The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter.  It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death.  Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. 

The reality of the death penalty is that it is not for the worst of the worst.  It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

June 23, 2019 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Wednesday, June 19, 2019

New Compassionate Release Clearinghouse to match lawyers with prisoners seeking release after FIRST STEP Act

This new press release, titled "FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse," reports on an exciting new resource for helping to better implement a part of the FIRST STEP Act. Here are the details:

Thousands of sick, dying, and elderly federal prisoners who are eligible for early release will now have access to free legal representation in court through the newly established Compassionate Release Clearinghouse. The clearinghouse, a collaborative pro bono effort between FAMM, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL), is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses. It’s gratifying to know we will be able to help people in a tangible and meaningful way.”

The Compassionate Release Clearinghouse recruits, trains, and provides resources to participating lawyers. The Clearinghouse’s design and implementation is being assisted by the Washington, D.C., law firm of Zuckerman Spaeder LLP through its partner Steve Salky.

“Sick and dying prisoners for years were unjustly denied release on compassionate release grounds by the Bureau of Prisons,” said Jonathan Smith, Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Now, prisoners will be assisted by dedicated and high-quality lawyers in seeking relief from the courts, evening the playing field, and allowing many of these prisoners to return home.”

The effort was made possible by the passage of the First Step Act, which addresses a well-documented, three-decades-long issue in which sick, elderly, and dying prisoners have been routinely denied early release by the Bureau of Prisons (BOP). Until December 2018, there was no mechanism to challenge or appeal those decisions. Now, prisoners are allowed to appeal directly to a sentencing judge if their petitions are denied or unanswered.

Since the passage of the First Step Act, prisoners have been filing motions for release, and some have been challenged by federal prosecutors. The Compassionate Release Clearinghouse will make sure those prisoners have an attorney to fight for them in court.

“NACDL is proud to participate in this critically important effort,” said NACDL Executive Director Norman L. Reimer. “To make the promise of the First Step Act a reality for qualified sick, elderly, and dying prisoners, the nation’s criminal defense bar is committed to recruiting pro bono attorneys to be champions for those in need. Additionally, NACDL’s First Step Implementation Task Force will aggregate resources to support attorneys who undertake this important work.”

The Clearinghouse started matching attorneys with prisoners in need in February, and has matched more than 70 cases with pro bono attorneys. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

As regular readers may recall (and as I have stressed in a number of prior posts), because  18 U.S.C. § 3582(c)(1)(A), the provision of federal law often known as "compassionate release," allows a court to reduce a prison sentence based on any and all "extraordinary and compelling reasons," it should not only be the "sick, dying, and elderly federal prisoners" who are potentially eligible for early release.  But, as this press release highlights, because there is already a history of extreme resistance toward releasing even the most deserving under this provision, it is heartening to see these groups work to make sure prisoners can get needed legal help to benefit from the reforms Congress is surely eager to see given full effect.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Testing Periods and Outcome Determination in Criminal Cases"

The title of this post is the title of this important new article authored by Fiona Doherty and now available via SSRN. Here is its abstract:

This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining.  Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison.  Juries play no role in the system, and due process requirements diverge sharply from traditional norms.

The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.  The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test.  The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason.  The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.” 

June 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)