Saturday, October 12, 2019

Deep dive into the deep human realities surrounding DC second look laws and policies

A helpful reader alerted me to this great extended article from the Washington City Paper about second look sentencing players and practices in DC. The piece, which I recommend in full, is headlined "How to End a Sentence: Juvenile sentencing reforms have sparked a face-off between the D.C. Council and U.S. Attorney over who should be released, and when."  Here are excerpts:

The [Incarceration Reduction Amendment Act] IRAA allows people who committed violent crimes before they turned 18 to ask a judge for a reduced sentence, as long as they’ve served at least 15 years. A D.C. Council bill introduced in February, the Second Look Amendment Act, would expand the law to include people who committed crimes before their 25th birthdays. An estimated 70 people have asked for a new sentence, and the bill could expand the number of eligible offenders to more than 500, the USAO believes.

This legislation comes as so-called “second look laws” are gaining momentum across the country and follow the precedent set by multiple U.S. Supreme Court rulings curtailing harsh sentences for juveniles. The high court’s decisions rely on a growing body of research showing brain development continues into a person’s mid-20s.

The Model Penal Code, a project of the American Law Institute that provides a template for criminal justice policy makers, suggests that offenders of all ages receive a second look after serving 15 years in prison. The latest version, revised in 2017, explains that America relies on the heavy use of lengthy prison sentences more than any other Western democracy. The U.S. has the highest incarceration rate in the world, despite two decades of falling crime rates.

D.C. Superior Court Judge Ronna Beck agrees that long sentences deserve another look. “I wish there were an opportunity for judges to be able to review everyone’s sentence after a significant period of time,” Beck said during Flowers’ resentencing. “Many people will not qualify for the sentence reduction that you did, but I think that it would be beneficial to our system to be able to have a review like this so that when people have really transformed their lives, as you seem to have done, that there was an opportunity to adjust a sentence that was imposed many, many decades earlier.”

A majority of the D.C. Council supports the Second Look Amendment Act—as does Mayor Muriel Bowser’s administration and Attorney General Karl Racine. But [Jessie] Liu, the Trump-appointed U.S. Attorney, is not a fan. Her office has encountered few IRAA petitions that it likes. Since the original law took effect in 2017, federal prosecutors, who have jurisdiction over felony crimes in D.C., have opposed nearly every request for resentencing.

They’ve argued that offenders are too dangerous to be released, their crimes are too heinous, they haven’t accepted responsibility for their crimes, their release undermines “truth in sentencing,” and that, although prison records showing a dedication to education are admirable, they are to be expected.

At a recent hearing for Mustafa Zulu, a man who spent 20 years in solitary confinement starting when he was 20, Assistant U.S. Attorney Jocelyn Bond argued that Zulu’s “very very impressive” list of educational courses and accomplishments does not outweigh his sins in and out of prison. “Education is not a panacea for violence,” Bond said. “It does not fix someone’s character … It doesn’t change someone’s underlying violent character.”

In September, as part of its campaign opposing the Second Look Amendment Act, the U.S. Attorney’s Office hosted a meeting for the public and a group of advisory neighborhood commissioners. Liu stood against the wall while representatives from her office made their case against the bill, emphasizing the impact on victims and concerns that the Council is expanding the law too quickly without sufficient evidence that those released won’t commit new crimes.

During the meeting, John Hill, a deputy chief and career prosecutor, cited data from the Bureau of Prisons showing a recidivism rate of about 35 percent among people released from 2009 to 2015 who would be eligible under the Second Look Amendment Act. Hill ignored City Paper’s request for the underlying data, and the USAO has refused to release it. Hill also presented incorrect data on D.C.’s incarceration rate, which the office later corrected in a tweet.

Nazgol Ghandnoosh, a senior researcher for The Sentencing Project, a nonprofit organization that promotes criminal justice reform, points out that the BOP’s definition of recidivism includes technical parole violations for missing a meeting or smoking weed. “A recidivism measure that separates these factors from new offenses gives people a better sense of public safety risk,” Ghandnoosh says.

Sarah McClellan, chief of the USAO’s victim witness assistance unit, explained at the September meeting that the new law reactivates trauma for victims and their families, many of whom have spoken passionately in opposition to offenders’ release.  At least two advisory neighborhood commissioners have published editorials opposing the second look bill, including Darrell Gaston, whose 15-year-old godson, Gerald Watson, was gunned down earlier this year. Malik Holston, 16, is charged with first-degree murder in Watson’s death.

October 12, 2019 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 07, 2019

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

October 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

So many cert denials, and lots of Davis and Rehaif GVRs, in first big SCOTUS order list of OT19

The Supreme Court this morning has released this 78-page order list that resolves lots and lots of the cases that pile up at the Court during its summer recess.  The list of cases in which certiorari has been denied runs dozens of pages, and I was a bit surprised that this order list does not have any statements from any Justices about any of these denials.  (In all likelihood, any cases the Justices thought debatable have been relisted for possible comment in later order lists.)

The order list start with a long list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals." The vase majority of the GVRs cite the Supreme Court's work in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).  These GVRs are not surprising, as I wondered aloud in this post back in June about the likely mess and challenge that Davis and Rehaif  surely presented for lower courts.  As is their custom, the Justices are eager to send cases back to the lower courts to start the clean up effort.

October 7, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, October 06, 2019

Encouraging new data on reduced arrests for low-level offenses (while national crime rates continue to decline)

This new Wall Street Journal article gets my week off to an encouraging start.  The full headline of the piece sets for the essentials: "Arrests for Low-Level Crimes Are Plummeting, and the Experts Are Flummoxed: Data collected from U.S. cities revealed declines in driving and alcohol-related violations, disorderly conduct, loitering and prostitution." Here are excerpts:

Major police departments around the country are arresting fewer people for minor crimes, according to a growing body of criminal justice data. New statistical studies show a deep, yearslong decline in misdemeanor cases across New York and California and in cities throughout other regions, with arrests of young black men falling dramatically.

New York City’s misdemeanor arrest totals have fallen by half since peaking in 2010, with rates of black arrests sinking to their lowest point since 1990. The arrest rate for black men in St. Louis fell by 80% from 2005 to 2017, a period that saw steep declines in simple assault and drug-related offenses. In Durham, N.C., arrest rates for blacks fell by nearly 50% between 2006 and 2016.  While racial disparities in enforcement persist, researchers say they are surprised by the downward misdemeanor trend, which pushes against ingrained assumptions about overpolicing in urban areas.

At the moment, experts can only speculate about what’s behind the decline.  It is expected to be the subject of more study that could yield better understanding in the future. Some say the falling arrest rates signal a fundamental shift in crime prevention. The shrinking misdemeanor system, they say, is evidence that police departments are pulling back on sweeping quality-of-life enforcement and focusing instead on “hot spots,” neighborhood strips and streets with clusters of gun violence and gang activity.

The decline, some experts say, could also be driven by technologies like the internet and mobile phones that help to keep social interaction off the streets and inside homes. The growing decriminalization and legalization of marijuana has also contributed, they say.  “The enforcement powers of the police are being used far less often,” said Jeremy Travis, a former president of John Jay College of Criminal Justice in Manhattan. It is a “very deep reset of the fundamental relationship between police and public.”

Millions of Americans are swept into the misdemeanor system every year, but only recently have scholars sought to dig into the numbers of low-level crime. Criminal data and research have focused on violent felonies like rape and murder and more serious drug-dealing offenses, while statistics on misdemeanors have been notoriously inconsistent and spotty.

Historically, few jurisdictions made it possible to track how many people were arrested for crimes like turnstile jumping, disorderly conduct, marijuana possession, shoplifting, trespassing, drunken-driving and fist fight assaults.  Federal investigations into policing practices in Ferguson, Mo., and Baltimore, and scrutiny of aggressive policing tactics like “stop-and-frisk,” helped to raise the visibility of misdemeanor justice and its impact on poor minority communities.  Most defendants charged with petty offenses serve little or no time behind bars but pay court fines and fees or get their cases conditionally dismissed.

Researchers saw misdemeanors as another unchecked, racially unbalanced police power creating barriers to housing, employment and education.  With millions of dollars in grants, a network of scholars led by John Jay collected data from several cities and released reports over the past year.  Other studies revealed similar patterns.  A December report by the Public Policy Institute of California found that misdemeanor rates in California declined by close to 60% between 1989 and 2016.  Los Angeles police made 112,570 misdemeanor arrests in 2008 and 60,063 by 2017, largely driven by declines in driving and alcohol-related offenses, according to John Jay’s research network.

A forthcoming paper by law professors at George Mason University and the University of Georgia also found sizable arrest declines in rural Virginia, San Antonio and other jurisdictions.  Other indications include shrinking caseloads reported by the National Center for State Courts and arrest tallies by the Federal Bureau of Investigation showing steady declines in disorderly conduct, drunkenness, prostitution and loitering violations....

Compared with the felony system, misdemeanor enforcement is much less sensitive to actual crime rates and more influenced by changing political and cultural winds, says Alexandra Natapoff, a University of California-Irvine law professor.

In addition to the great news that we are finally gathering better data on misdemeanor systems, it is even greater news that we are using it less. In this post some months ago, I spotlighted LawProf Alexandra Natapoff's terrific book highlighting how much harm and punishment can come with the misdemeanor process.  And, though not mentioned in the WSJ article, I think it critical to note that the reduction in low-level arrests has come at the same time as a great reduction in violent and property crimes over the last decade (details here on latest FBI crime data).  I think we all ought to hope and aspire for a world with less crime and less punishment, and that seems to be what we are starting to achieve in recent years.

October 6, 2019 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Friday, October 04, 2019

Mass Supreme Judicial Court vacates manslaughter conviction based on merely providing heroin to person who overdosed

As reported in this local article, the top court in Massachusetts has vacated "the involuntary manslaughter conviction of a man who provided drugs in a fatal overdose."  Here is the context and commentary from the press piece: 

Jesse Carrillo was convicted two years ago for the 2013 fatal heroin overdose of fellow UMass Amherst student Eric Sinacori, who was 20 when he died. On Thursday, the state's Supreme Judicial Court vacated Carrillo's manslaughter conviction, arguing that the prosecution did not provide sufficient evidence that Carrillo knew the heroin would cause a fatal overdose.

Northwestern District Attorney David Sullivan said in a statement that it's "disheartening that the Supreme Judicial Court does not believe heroin use carries a high probability of substantial harm or death." He added: "The families who have lost loved ones to this brutal epidemic would surely disagree with the Court’s analysis, as do we.”

But Northeastern University law professor Leo Beletsky says if the case were upheld, it would have set a dangerous precedent. "If the government could charge every person who shares drugs with someone who subsequently dies, the way that the government had argued this case previously would essentially turn those friends, those partners, those co-users into potential murderers," he said.

The full unanimous ruling of the Massachusetts Supreme Judicial Court is available at this link, and it my be of particular interest to law profs and 1Ls now getting to the homicide unit in their CrimLaw classes (and to many others). Here are excerpts from the opinion's introduction: 

To find a defendant guilty of involuntary manslaughter caused by wanton or reckless conduct, our case law requires proof beyond a reasonable doubt that the defendant engaged in conduct that creates "a high degree of likelihood that substantial harm will result to another."  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Selling or giving heroin to another person may be wanton or reckless conduct where, under the circumstances, there is a high degree of likelihood that the person will suffer substantial harm, such as an overdose or death, from the use of those drugs.  And in many cases the circumstances surrounding the distribution of heroin will permit a rational finder of fact to find beyond a reasonable doubt that the transfer of heroin created a high degree of likelihood of substantial harm, such as an overdose or death. But not every case will present circumstances that make such conduct "wanton or reckless." This is one such case.

We conclude that the mere possibility that the transfer of heroin will result in an overdose does not suffice to meet the standard of wanton or reckless conduct under our law. The Commonwealth must introduce evidence showing that, considering the totality of the particular circumstances, the defendant knew or should have known that his or her conduct created a high degree of likelihood of substantial harm, such as an overdose or death.

Here, no evidence was presented during the Commonwealth's case-in-chief that would permit a reasonable jury to conclude that the inherent possibility of substantial harm arising from the use of heroin -- which is present in any distribution of heroin -- had been increased by specific circumstances to create a high degree of likelihood of substantial harm.  For instance, the Commonwealth did not present evidence that the defendant knew or should have known that the heroin was unusually potent or laced with fentanyl; evidence that Sinacori was particularly vulnerable to an overdose because of his age, use of other drugs, or prior overdoses; or evidence that the defendant knew or should have known that Sinacori had overdosed but failed to seek help.  In the absence of any such evidence, we conclude that the Commonwealth did not meet its burden of producing sufficient evidence for a reasonable jury to conclude that the defendant's conduct in this case created a high degree of likelihood that Sinacori would suffer substantial harm, such as an overdose or death, from his use of the heroin.  The defendant's conviction of involuntary manslaughter must therefore be vacated, and a required finding of not guilty entered.

As many of my former students likely recall, the Welansky case is still one of my favorite cases to teach during 1L Criminal Law. I find it fascinating to see that tragic case and the legal precedent that it set still of great importance 75 years later in very different sad setting.

October 4, 2019 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, October 03, 2019

US District Judge rejects feds lawsuit to enjoin operation of proposed safe injection site for opioid users in Philadelphia

As reported in this NPR piece, a federal judge "has ruled that a Philadelphia nonprofit group's plan to open the first site in the U.S. where people can use illegal opioids under medical supervision does not violate federal drug laws, delivering a major setback to Justice Department lawyers who launched a legal challenge to block the facility." Here is more about the important ruling:

U.S. District Judge Gerald McHugh ruled Wednesday that Safehouse's plan to allow people to bring in their own drugs and use them in a medical facility to help combat fatal overdoses does not violate the Controlled Substances Act. "The ultimate goal of Safehouse's proposed operation is to reduce drug use, not facilitate it," McHugh wrote in his opinion, which represents the first legal decision about whether supervised injection sites can be legally permissible under U.S. law.

The decision means that the country's first supervised injection site, or what advocates call an "overdose prevention site," can go forward. Justice Department prosecutors had sued to block the site, calling the proposal "in-your-face illegal activity."

While local officials from New York to San Francisco praised the decision, the federal government is expected to appeal. "The Department of Justice remains committed to preventing illegal drug injection sites from opening," said Bill McSwain, U.S. Attorney for the eastern district of Pennsylvania. "Today's opinion is merely the first step in a much longer legal process that will play out. This case is obviously far from over."

Most studies show that the supervised injection sites can drive down fatal overdoses. These sites are credited with restricting the spread of infectious diseases. And advocates say the facilities help move more people into treatment. The American Medical Association has endorsed launching supervised injection site pilot programs.

Ronda Goldfein, who is Safehouse's vice president and secretary, said winning judicial approval is a major feat for advocates of the proposed site, which also has the backing of top city officials and former Pennsylvania governor Ed Rendell. "Philadelphia is being devastated. We've lost about three people a day" to opioid overdoses, Goldfein said. "And we say we had to do something better and we couldn't sit back and let that death toll rise. And the court agreed with us."...

Supervised injection sites exist in Canada and Europe, but no such site has gotten legal permission to open in the U.S. Cities like New York, Denver and Seattle have been publicly debating similar proposals, but many were waiting for the outcome of the court battle in Philadelphia. Attorneys general from Washington, D.C., and seven states including Michigan, New Mexico and Oregon, in addition to city leaders in five cities, urged the court before the decision to rule in favor of Safehouse.

Legal hurdles are not Safehouse's only obstacles. The facility is planning to launch in the Philadelphia neighborhood of Kensington, which has been ravaged by the opioid crisis, but some neighbors have resisted welcoming an injection site into their community. Community activist Amanda Fury said the court decision will not change the hardened battle lines over this issue there. "I've never been in the business of trying to change people's minds on this," said Fury, who supports the measure but admits that residents are divided....

In court, meanwhile, prosecutors have contended that the plan violated a provision of the Controlled Substances Act that makes it illegal to own a property where drugs are being used — known as "the crack house statute." But backers of Safehouse argued the law was outdated and not written to prevent the opening of a medical facility aimed at saving lives in the midst of the opioid crisis....

On Wednesday, in a move that surprised observers, McHugh agreed. He wrote that there "is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse." McHugh rejected federal prosecutor's view that this was an open-and-shut case of a proposal clearly violating federal drug statutes. Instead, he noted that the purpose of Safehouse is not to provide a place for people to engage in unlawful activity. "Viewed objectively, what Safehouse proposes is far closer to the harm reduction strategies expressly endorsed by Congress," McHugh wrote.

The full opinion in US v. Safehouse is available at this link, and it makes for a very interesting read. These part of the opinion's introduction highlights how notions of judicial modesty in application of criminal law moved Judge McHugh:

As discussed below, courts must exercise extreme care in discerning the objective sought by Congress in enacting a statute.  That said, having reviewed materials I consider appropriate in discerning what Congress sought to address in enacting § 856(a)(2), there is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse.  Although the language, taken to its broadest extent, can certainly be interpreted to apply to Safehouse’s proposed safe injection site, to attribute such meaning to the legislators who adopted the language is illusory.  Safe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse.  Particularly in the area of criminal law, it is the province of Congress to determine what is worthy of sanction.  A line of authority dating back to Chief Justice John Marshall cautions courts against claiming power that properly rests with the legislative branch.  A responsible use of judicial power under those circumstances is to decline to expand the scope of criminal liability under the statute and allow Congress to address the issue.

The US Deputy Attorney General released this statement following this ruling, which states "The Department is disappointed in the Court’s ruling and will take all available steps to pursue further judicial review. Any attempt to open illicit drug injection sites in other jurisdictions while this case is pending will continue to be met with immediate action by the Department."

October 3, 2019 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Wednesday, October 02, 2019

"An Ode to the Categorical Approach"

The title of this post is the title of this new paper just posted to SSRN and authored by Amit Jain and Phillip Warren. Here is its abstract:

In United States v. Davis, a narrow majority of the U.S. Supreme Court adhered to the so-called “categorical approach” for determining which criminal convictions trigger additional federal penalties. But this approach, which requires courts to consider an individual’s crimes as defined by law instead of the facts of the person’s conduct, has increasingly come under fire.  An ever-louder chorus of jurists argues that the approach is unworkable and allows individuals with criminal records to escape harsh consequences that can include decades of added incarceration, registration as a “sex offender,” or mandatory deportation.

These complaints are overstated.  The categorical approach — a time-weathered component of American jurisprudence for over a century — is far from the nonsensical nightmare its naysayers portray it to be.  Although the aforementioned federal penalties compromise the states’ historic role in defining and prosecuting crimes, in a world where such penalties exist, the categorical approach respects statutory text, avoids administrative challenges, protects Sixth Amendment rights, advances fair notice, and promotes uniformity.  In addition, the approach offers an under-recognized federalist counterweight to the undue expansion of federal and state criminal law.  In particular, it gives state leaders a unique, subtle incentive to ensure that the most serious crimes focus on the most serious conduct, lest these crimes cease to qualify as predicates for federal penalties.

Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy.  Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.

October 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

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)

After murder conviction, Texas jury on to sentencing phase in trial of Amber Guyger for killing Botham Jean

As reported in this Dallas Morning News piece, headlined "Amber Guyger convicted of murder for killing Botham Jean; sentencing phase to continue Wednesday," a high-profile trial resulted in the murder verdict and then immediately shifted into a jury sentencing phase. Here are the basics:

A Dallas County jury on Tuesday convicted Amber Guyger of murdering Botham Jean in his apartment last year, in a trial that renewed international outrage over white police officers killing unarmed black men.

Jean's mother raised her arms in exultation as cheers broke out in the hallway outside the courtroom when the verdict was announced shortly after 10:30 a.m., following five hours of deliberation by the jury....

Guyger was booked into the Dallas County jail for the night about 4:45 p.m., not long after court recessed for the day. Testimony in the punishment phase of Guyger's trial will continue at 9:30 a.m. Wednesday. In Texas, murder carries a sentence of five to 99 years or life in prison. She isn't eligible for probation.

Guyger, 31, fatally shot 26-year-old Jean in his apartment last year. She was off-duty but still in uniform when she shot Jean with her service weapon. She had said she mistook his apartment for her own and thought Jean was a burglar. She is the first Dallas officer convicted of murder since the 1970s.

Jurors deliberated for three hours Monday after the prosecution and Guyger's defense presented closing arguments. They quickly delivered a verdict after two more hours Tuesday morning....

About 2:30 p.m., Allison Jean took the stand [at the start of the penalty phase], telling the jury how her middle child, Botham, was the "glue" between his older sister, Allisa, and younger brother, Brandt, who are separated by a 20-year age difference. "Botham was also this take charge type of person, so he was always giving advice both to Allisa and to Brandt," she said.

Sobbing at times, the proud mother talked about Botham Jean's many interests, from rugby to a lifelong love for singing. Several jurors turned their chairs toward Allison Jean as she testified. When she grew emotional, one juror turned his head away and stared at the wall for a few minutes. Then, he looked back at Jean.

Guyger stared straight ahead throughout the testimony Tuesday afternoon. She didn't appear to look at the witness stand or at pictures displayed on three large screens in the courtroom of Jean smiling with family members and friends.

Prosecutor LaQuita Long showed the jury photos of Botham Jean growing up, including a photo with him and his grandmother at his high school graduation. In the photo, he's beaming, holding a trophy that his mother said was given to the top student for discipline and academic excellence....

[Allisa] Findley, Botham Jean's older sister, also testified, telling jurors how her family has been changed forever since her brother died. She bowed her head as videos of her brother singing at a worship service played on the screen overhead.

Because I have not been able to follow the trial closely, I am hesitant to even guess what kind of sentence the jury will now bring back in this case. I am tempted to predict it will be a sentence somewhat closer to the statutory minimum of 5 years than to the statutory maximum of 99 years, but one never quite knows with juries.

October 2, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (3)

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)

Friday, September 27, 2019

SCOTUSblog online symposium previews "Bridgegate" political corruption case

Though there are other cases to be argued earlier in the coming Supreme Court Term that are sure to be of interest to sentencing fans, I suspect more than a few folks in the white-collar bar are especially excited for Kelly v. United States, a high-profile political fraud case on the SCOTUS docket this Term.  I know the great folks at SCOTUSblog are focused on this case, as they put together an online symposium this week with a lot of leading white-collar crime voices.  Here are the links, with all recommended reading:

September 27, 2019 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Thursday, September 26, 2019

Senators Durbin and Grassley introduce "Prohibiting Punishment of Acquitted Conduct Act of 2019"

I am so very pleased to be able to blog about a new effort to prohibit the ugly practice of using "acquitted conduct" in the federal sentencing system.  Specifically, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Long-time readers know I have been a long-time opponent of federal courts' use of acquitted conduct at sentencing (e.g., here is a post from 11 years ago on the issue, which itself links to more than a half-dozen prior posts on the topic).  I have also been involved in preparing briefs assailing the use of acquitted conduct in a number of circuit courts, and I was especially proud of this amicus brief that I prepared in support of certiorari in the Antwaun Ball case reference above.  So, I am fully supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing.

Thankfully, lots of other folks are also supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing, as revealed by these new policy group postings:

From Americans for Tax Reform, "ATR Joins Coalition Supporting the Prohibition of Punishing Acquitted Conduct"

From the Cato Institute, "Addressing the Gross Injustice of Acquitted Conduct Sentencing"

From FreedomWorks, "Support the Prohibiting Punishment of Acquitted Conduct Act, S. 2566"

From the National Association of Criminal Defense Lawyers, "National Association of Criminal Defense Lawyers"

September 26, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | 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)

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)

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)

Thursday, September 12, 2019

Jailed for unpaid fines almost a decade after being imprisoned for years for $31 pot sale

This new Washington Post article reminded me of a name and an ugly case from nearly a decade ago.  As the article explains, the matter has not gotten any less depressing.  The headline provides the essentials: "She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees."  Here are the dispiriting details:

Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.  In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison.  It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job.  Notices about overdue payments piled up, with late fees accumulating on top of the original fines.  On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again....

Back in 2011, Spottedcrow became an unwitting poster child for criminal justice reform when the Tulsa World featured her in a series about women incarcerated in Oklahoma. Then 25, she had just entered prison for the first time, and didn’t expect to be reunited with her young children until they were teenagers.

At the time of her arrest, Spottedcrow was unemployed and without a permanent home, the paper reported. She was staying at her mother’s house in the small town of Kingfisher, Okla., when a police informant showed up and bought an $11 bag of marijuana.  Two weeks later, he returned to buy another $20 worth of the drug from Spottedcrow.  Both mother and daughter were charged with distribution of a controlled substance, and, because Spottedcrow’s children were at home when the transaction took place, possession of a dangerous substance in the presence of a minor....

The two women both were offered plea deals that would have netted them only two years in prison, the World reported, but Spottedcrow didn’t want her 50-year-old mother, who has health issues, incarcerated.  Because neither had a prior criminal record and they had sold only a small amount of pot, they took their chances and pleaded guilty without negotiating a sentencing agreement, assuming they would be granted probation.

Instead, the judge sentenced Spottedcrow to 10 years in prison for the distribution charge, plus another two years for possession. Her mother received a 30-year suspended sentence so that she could take care of the children.  Kingfisher County Associate District Judge Susie Pritchett, who retired not long afterward, told the World she thought the sentence was lenient.  The mother-daughter pair had been behind “an extensive operation,” she claimed, adding, “It was a way of life for them.”

Spottedcrow said that wasn’t true.  “I’ve never been in trouble, and this is a real eye-opener,” she told the paper at the start of her prison stint.  “My lifestyle is not like this. I’m not coming back. I’m going to get out of here, be with my kids and live my life.”

After the World’s story published in 2011, supporters rallied around Spottedcrow’s cause, urging officials to reconsider her punishment.  At the time, Oklahoma had the highest per capita rate of female incarceration in the country, a title it continues to hold today.  Advocates contended that lengthy sentences like hers were part of the problem, and questioned whether racial bias could have played a role — Spottedcrow is part Native American and part African American.

That same year, a different judge reviewed Spottedcrow’s sentence and agreed to shave off four years.  Then, in 2012, then-Gov. Mary Fallin (R) approved her parole.  Spottedcrow got home in time to surprise her kids when they stepped off the school bus.  The American Civil Liberties Union described her release as a “bittersweet victory,” noting that serving only two years of a 12-year sentence was highly unusual, but the penalty that she received for a first-time, nonviolent drug offense wasn’t out of the ordinary for Oklahoma.

It also wasn’t the end of her troubles.  In 2017, five years after Spottedcrow was released from prison, Ginnie Graham, a columnist for the World, checked into see how she was doing.  The picture that she painted was dispiriting: Spottedcrow’s growing family was living in a motel off the interstate because having a felony drug conviction on her record made it virtually impossible for her to find housing, and she hadn’t been able to find work, either. “I’ve never had Section 8 or HUD, but I need it now,” she said. “I even called my (Cheyenne and Arapahoe) tribe to help, and they didn’t. I called the shelters, and they don’t take large families.”

That same year, at a forum on criminal justice reform, Spottedcrow explained that she couldn’t go back to working in nursing homes like she had done before her arrest because of her felony conviction.  And in a small town like Kingfisher, every other potential employer already knew about her legal woes....

While Spottedcrow struggled to care for her six children, the Kingfisher County Court Clerk’s Office mailed out more than a dozen notices saying she had fallen behind on her payments.  Each letter meant that the court had tacked on another $10 fine, and that another $80 would be added on top of that if the office didn’t get the money within 10 days.  When Spottedcrow first reported to prison, she owed $2,740 in fines.  After her release, she made payments at least every other month according to the World.  But it barely made an impact on her ballooning debt: When she was arrested this week, she owed $3,569.76....

Spottedcrow’s new arrest on Monday brought renewed attention to her nearly decade-old court case. KFOR morning news anchor Ali Meyer, who detailed the saga in a widely shared Twitter thread, noted that cannabis has been a booming industry in Oklahoma ever since the state legalized medical marijuana in 2018, and left it up to doctors to determine who qualified.

On Tuesday afternoon, Meyer posted the number for the Kingfisher County Court Clerk’s Office, which would allow anyone to make payments on Spottedcrow’s behalf.  By Wednesday, seven anonymous supporters had covered not just the $1,139.90 that she needed to get out of jail, but her entire $3,569.76 outstanding balance, the station reported.

Somewhere, Franz Kafka is smiling.

Prior posts on Spottedcrow's case:

September 12, 2019 in Examples of "over-punishment", Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (2)

Wednesday, September 11, 2019

"Violent Crime and Punitiveness: An Empirical Study of Public Opinion"

The title of this post is the title of this new paper now available via SSRN authored by Michael M. O'Hear and Darren Wheelock. Here is its abstract:

Evidence suggests that the public favors tough punishment for individuals who have been convicted of violent crimes, but why?  In order to better understand the factors that contribute to punitive attitudes toward violent crime, or “V-punitiveness,” we analyze data from a recent survey of Wisconsin voters as a part of the Marquette Law School Poll.  In sum, respondents generally supported prison terms for individuals convicted of violent crime, but this support was not unwavering and unconditional.  While analysis of these data identified several variables that correspond with higher levels of V-punitiveness, neither fear of violent crime nor personal experiences were among them.  Instead, V-punitiveness seems more closely tied to broader sets of social beliefs regarding individual responsibility, traditional values, and the like.

Our results suggest that tough responses to violent crime may be supported more for expressive than instrumental reasons.  Thus, efforts to change public policy in this area may need to contend with expressive considerations.  If reformers wish to change minds about legal responses to violent crime, instrumental arguments based simply on “what works” in reducing violent recidivism may come up short.

September 11, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

Prior related posts:

September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Tuesday, September 10, 2019

BJS releases "Criminal Victimization, 2018" reporting increase in violent victimization and decrease in property crime victimization

The federal government collects and reports on crime data in two essential ways: though the uniform crime reporting system run by the FBI (details and publications here) as well as through the Bureau of Justice Statistics' National Crime Victimization Survey. The latest crime data from BJS appear in this new publication titled simply "Criminal Victimization, 2018." Along with this full report, BJS has provided some data highlights via a Press Release and a Summary, and here are excerpts from the one-page summary:

The longstanding general trend of declining violent crime in the United States, which began in the 1990s, has reversed direction in recent years, based on findings from the National Crime Victimization Survey (NCVS), one of two major sources of crime statistics in the United States. Meanwhile, the long-term decline in property crime has continued in recent years.

After declining 62% from 1994 to 2015 (the most recent year in which a 1-year decline was observed), the number of violent-crime victims increased from 2015 to 2016, and again from 2016 to 2018. Among U.S. residents age 12 or older, the number of violent-crime victims rose from 2.7 million in 2015 to 3.3 million in 2018, an increase of 604,000 victims. This overall rise was driven by increases in the number of victims of rape or sexual assault, aggravated assault, and simple assault.

From 2015 to 2018, the portion of U.S. residents age 12 or older who were victims of violent crime increased from 0.98% to 1.18% (up 20%) (see figure).  Over that span, the portion of white persons age 12 or older who were victims of violent crime increased from 0.96% to 1.19% (up 24%), the portion of males who were victims rose from 0.94% to 1.21% (up 29%), and the portion of females who were victims rose from 1.03% to 1.16% (up 13%).....

There was no statistically significant 1-year change in the number of violent-crime victims age 12 or older from 2017 to 2018; however, the number of violent incidents (the number of specific criminal acts involving a victim) rose from 5.2 million to 6.0 million.  Based on the 2018 survey, the offender was of the same race or ethnicity as the victim in 70% of violent incidents involving black victims, 62% of those involving white victims, 45% of those involving Hispanic victims, and 24% of those involving Asian victims....

While violent crime rose in recent years, property crime fell, as the portion of households that were victims of property crime fell from 7.99% in 2014 to 7.27% in 2018, while the portion that were victims of burglary dropped from 1.27% to 1.07%.

September 10, 2019 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Monday, September 09, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

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)

Monday, August 26, 2019

Feds officially commit to seeking death penalty for Pittsburgh synagogue mass murderer

As reported in this local article, the "Justice Department said Monday that it will seek the death penalty for Robert Bowers, accused of killing 11 at Tree of Life synagogue in Squirrel Hill and wounding six others last year in the worst attack on Jews in U.S. history." Here is more:

The move was expected. Within days of the Oct. 27 massacre, the U.S. attorney's office said it had started the approval process for seeking death for Mr. Bowers in consultation with DOJ's capital crimes unit and the U.S. attorney general, Jeff Sessions at the time.

In a court filing Monday, prosecutors said Mr. Bowers qualifies for the death penalty because he allegedly targeted vulnerable people out of religious hatred, killed multiple victims and tried to kill others, chose the site to make an impact and showed no remorse, among other factors.

The decision to seek death comes despite a request by two of the Jewish congregations targeted in the shootings to spare Mr. Bowers' life.  In a recent letter to Attorney General William Barr, the groups cited religious and personal objections to capital punishment.  They also expressed concern about a trial and penalty phase that would require testimony from survivors, exposing them to further trauma.

Stephen Cohen, co-president of New Light Congregation, who had written to Attorney General Barr urging he accept a guilty plea with a guaranteed life sentence, said it was “absolutely the wrong decision” to seek the death penalty.  A trial will not bring closure to victims, he said. They will have to testify in court and sit there while “this heinous person tries to prove he didn’t do something he obviously did,” Mr. Cohen said. There’s no guarantee of a conviction, he said, and even if there is a finding of guilt, “people stay on death row for years and years.”...

Death penalty cases are rare in the federal system and executions almost never occur. Only three people have been put to death federally since the death penalty was reinstated in 1988....  Mr. Bowers is only the fourth person to face death in the history of the Western District of Pennsylvania, which comprises 25 counties.  None was executed.

August 26, 2019 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, August 23, 2019

Florida completes execution of serial killer, the "I-95 killer."

As reported in this AP piece, "Gary Ray Bowles, a serial killer who preyed on older gay men during an eight-month spree that left six dead, was executed by lethal injection Thursday at Florida State Prison."  Here is more:

Bowles received the death penalty for the November 1994 murder of Walter Hinton in Jacksonville Beach. Hinton was Bowles' sixth and final known victim in a series of killings in an eight-month span in 1994 that terrorized the Interstate 95 corridor and won him the nickname "I-95 killer."

It began in Daytona Beach with the murder of John Hardy Roberts.  In between, there were victims in Rockville, Maryland; Savannah, Georgia; Atlanta; and Nassau County, Florida.  In each case, Bowles had a signature: He stuffed the victims' throats with objects — towels, rags, toilet paper, dirt, leaves and even a sex toy....

It wasn't hard for Daytona Beach police to figure out who killed Roberts, the first victim in March 1994: Bowles left a probation document at the scene and also was caught on an ATM camera trying to withdraw money from Roberts' account. What proved more difficult was capturing him, something they were unable to do until after five other men in three states had been slain.

Bowles, 57, was raised in West Virginia, where he experienced drugs and violence at a young age.  His father was a coal miner who died of black lung before he was born. His mother remarried multiple times, and his first two stepfathers were abusive, according to court records.  His mother and brother testified that Bowles began drinking, smoking marijuana and huffing glue when he was 11 years old.  When he was 13, he fought back against his second stepfather, smashing a rock in his head and nearly killing him, according to court records.  That's when Bowles left home.  Investigators say Bowles survived by letting gay men perform sex acts on him for money....

He also had a history of violence against women. He was convicted of beating and raping his girlfriend while living in Tampa in 1982 and sentenced to eight years in prison.  The victim had severe injuries, including tears on her vagina and anus.  

August 23, 2019 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Wednesday, August 21, 2019

Noticing the tendency for criminal justice reforms to become a scapegoat for all sorts of crime concerns

One of the many challenges of engineering enduring criminal justice reforms can be the tendency of some folks to attribute any new crime concerns or problems (or perceived new concerns or problems) as a harmful consequence of reforms.  All sorts of crimes and crimes rates fluctuate for all sort of reasons, but all to often there is a tendency to want to blame any significant reforms for any new crime issues even when there is little logical connections between the new reforms and the new issues.  This local article from Oklahoma, headlined "QuikTrip questioned on assertion that crime at its stores is up 300% because of SQ780," highlights these problematic dynamics:

Following the passage of a criminal justice reform state question, property crimes in Oklahoma became worse compared to other states in which QuikTrip operates, the company’s manager of public and government affairs said.  QuikTrip’s Mike Thornbrugh spoke Tuesday to the Criminal Justice Reclassification Coordination Council, which is pondering recommendations to changes to criminal justice laws....

Passed by voters in 2016, State Question 780 downgraded several nonviolent offenses from felonies to misdemeanors and reduced their associated sentences. It also increased the property value to $1,000 from $500 for a felony offense.

“The property crimes last year have increased over 300%,” Thornbrugh said. “And the lost inventory in Oklahoma is four times higher than anywhere else that we operate.”  He said the root of the problem is the increase for the dollar amount constituting a felony.  “The biggest item dollar-wise at QuikTrip is probably a carton of cigarettes, which is around $60,” Thornbrugh said. “So what we are experiencing, it takes 15, 20, 25 times for an individual to steal before (prosecutors) can even consider filing a felony.”

QuikTrip has increased security and put locks on cabinets and drawers behind checkout stands and on cooler doors for some items, he said.  But now criminals are breaking off the locks. “We are here to ask you today as you go through deliberations, please understand not everything fits every size,” Thornbrugh said. “We are concerned about the habitual career criminal. That is how they make their livelihood. We are not going after somebody that comes in and steals a donut because they are hungry.”

Oklahoma County Public Defender Bob Ravitz questioned Thornbrugh on his claims. “You mentioned that you were in numerous states,” Ravitz said. “Every one of those states you are in have a higher felony limit than the $1,000 felony limit that Oklahoma has. How come we have the problem that you are enunciating that other states don’t have?”

“Bob, I wish I could give you that answer,” Thornbrugh said.  “All I can do is to tell you the statistics we have and what we deal with day in and day out in those various states. I am not trying to avoid your question. I don’t know. We would like to know the answer to that, too.”

Ravitz said he didn’t understand Thornbrugh’s statement that the increases came after the implementation of State Question 780. Noting that nearly all of the items sold in QuikTrip cost less than $500, Ravitz maintained that raising the limit to $1,000 would not have had any effect.  QuikTrip may have seen a huge increase in crime and thefts, but it would have happened regardless of increasing the felony threshold to $1,000, Ravitz said.

Thornbrugh said there has always been theft but that the company is now seeing the same people stealing over and over again. “My point to you is a lot of these people who are habitual (offenders), they don’t care,” Thornbrugh said, adding that the thieves think nothing will happen to them. Thornbrugh said those who steal are reselling the products.

When contacted by the Tulsa World, the leader of the group that pushed for State Question 780 also dismissed Thornbrugh’s statements. “According to the data, the property crime rate in Oklahoma is at the level it was in 2016,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform. “Property crimes tend to fluctuate year to year.  The larceny rate actually decreased in 2017 following the implementation of State Question 780 reforms but rose slightly in 2018 to 2016 levels. There is no correlation between crime rates and felony thresholds, including states that have higher thresholds than Oklahoma.”

I suppose it is plausible that petty thieves in Oklahoma somehow felt embolden to steal more cigarettes from QuikTrip convenience stories after the state passed a vote initiative that raised the felony threshold for theft.  But, as this article highlights, this does not seem to be the most obvious reason for why QuikTrip may be having such problems with theft in the Sooner State.  And yet that story that QuikTrip’s manager of public and government affairs is pressing.

August 21, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, August 18, 2019

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

August 18, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 29, 2019

Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing

A helpful reader made sure I did not miss the rich opinions coming today from the Michigan Supreme Court in People v. Beck, No. 152934 (Michigan July 29, 2019) (available here).  Here is part of the start of the majority opinion authored by Chief Justice McCormack:

In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted?  Such a possibility presents itself when a defendant is charged with multiple crimes.  The jury speaks, convicting on some charges and acquitting on others.  At sentencing for the former, a judge might seek to increase the defendant’s sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt.  But the jury might have thought it was somewhat likely the defendant committed them.  Or the judge, presiding over the trial, might reach that conclusion.  And so during sentencing, when a judge may consider the defendant’s uncharged bad acts under a lower standard — a mere preponderance of the evidence — the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway.  Is that permissible?

We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

Justice Viviano authored a lengthy solo concurrence that starts this way:

In every criminal trial, jurors are instructed, “What you decide about any fact in this case is final.”  But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes — here, based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him — a more accurate instruction would read: “What you decide about any fact in this case is interesting, but the court is always free to disregard it.” Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant’s sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

And Justice Clement authored an extended dissent for herself and two other that concludes this way:

The majority’s holding may be difficult to apply, and it directly contradicts existing precedent.  The presumption of innocence does not prohibit the trial court from considering conduct underlying acquitted charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any supporting precedent for its conclusion.  Accordingly, I dissent from this Court’s reversal of the judgment of the Court of Appeals.  I would have affirmed the holding of the Court of Appeals that the trial court did not err by considering conduct underlying defendant’s acquitted charge but reversed insofar as the Court of Appeals remanded this case for a Crosby hearing.  Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of Appeals so that it could determine whether the trial court abused its discretion by violating the principle of proportionality.

Based on my too-quick scan of these opinions, it seems that the majority's holding is grounded on federal constitutional law (rather than just on state constitutional law). This means the state of Michigan could reasonably opt to seek further review in the US Supreme Court. Give Justice Gorsuch's work to date on similar issues and Justice Kavanaugh's past statements about acquitted conduct, I really hope Michigan might try to garner the Justices' attention on this conceptual and practically important topic.

July 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Monday, July 08, 2019

Some news and notes surrounding latest indictment of Jeffrey Epstein

The arrest and now (not-quite-second) federal prosecution of billionaire Jeffrey Epstein is all the buzz in the criminal justice world today, and this New York Post article provides some highlights on the indictment that was unsealed and how federal prosecutors are now approaching this matter:

Convicted pedophile Jeffrey Epstein “sexually exploited and abused” dozens of underage girls as young as 14 at his homes in New York and Florida in the early 2000s, Manhattan federal prosecutors alleged in an indictment unsealed Monday.  The billionaire financier was charged with sex trafficking and a related conspiracy count for allegedly creating “a vast network of underage victims” for him to exploit across multiple states from 2002 to 2005, the Manhattan federal court documents say.

Aided by three unidentified employees Epstein, 66, allegedly paid the girls hundreds of dollars in cash to come to his residences in Manhattan and Palm Beach to give him nude “massages” that would become “increasingly sexual in nature,” prosecutors allege.  “During the encounter, Epstein would escalate the nature and scope of physical contact with his victim to include, among other things, sex acts such as groping and direct and indirect contact with the victim’s genitals,” the indictment alleges....  Epstein “intentionally sought out” girls under 18 — and knew the girls were underage because some told him how old they were, they allege.

“The alleged behavior shocks the conscience and while the charged conduct is from a number of years ago, it is still profoundly important to the alleged victims,” Manhattan US Attorney Geoffrey Berman said at a news conference announcing the charges. “They deserve their day in court and we are proud to be standing up to them by bringing this indictment.”

The indictment shows the feds want to seize Epstein’s lavish townhouse at 9 E. 71st St. — a seven-story, 21,000-square-foot Upper East Side pad that is one of Manhattan’s largest townhouses and was allegedly one of the venues for his sick sexual pyramid scheme. Authorities “seized evidence including nude photographs what appear to be underage girls,” Berman said.

Epstein’s indictment follows a controversial deal he struck in 2008 with prosecutors in Palm Beach, Florida, after cutting a non-prosecution agreement with the Miami US Attorney’s Office, as detailed last year in an expose by the Miami Herald.  Epstein was facing up to life behind bars, but got a sentence of just 13 months.  The Miami US attorney at the time was Alex Acosta, who is now President Trump’s secretary of labor, and the Justice Department launched an investigation of that agreement in February following a request from Sen. Ben Sasse (R-Nebraska).

Berman said Epstein’s non-prosecution agreement “only binds the Southern District of Florida.”

“The Southern District of New York is not bound and is not a signatory,” he said.

Prosecutors will seek to have Epstein held without bail when he appears in court later Monday, Berman said. Berman called Epstein a “significant flight risk” due to his “enormous wealth” and the fact that the charges against him carry a maximum 45 years in prison, which Berman called “basically a life sentence” for someone of Epstein’s age. Berman also noted that Epstein owns two private plans and lives “much of the year abroad.”

Epstein was arrested around 5:30 p.m. on Saturday at Teterboro Airport in New Jersey, where he arrived in a private plane from Paris, officials said.

The full 14-page indictment in this high-profile matter is available at this link.

A few prior related posts:

UPDATE: This new Atlantic article by Ken White, headlined "The Jeffrey Epstein Case Is Like Nothing I’ve Seen Before: Great wealth insulates people from consequences, but not always, absolutely, or forever," is the best read on this case that I have seen of late.

July 8, 2019 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Sunday, July 07, 2019

"Statutory Federalism and Criminal Law'

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

Federal law regularly incorporates state law as its own.  And it often does so dynamically so that future changes to state laws affect how federal law will apply.  For example, federal law protects against deprivations of property, but states largely get to define what property is.  So when a state changes its property law, it automatically influences the effect of federal law.  This interdependence eases the tension that would otherwise arise when two different governments issue overlapping regulations.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity impairs that law.  With some notable exceptions, Congress ordinarily acts alone in criminal law.  But using dynamic incorporation more often would redress two problems: the political inertia that leads to a one-way ratchet in criminal law and the limited accountability for enforcement discretion.

Marijuana laws provide a compelling example.  Federal law flatly prohibits all marijuana use.  But forty-six states now have laws that conflict with federal law, and 93 percent of Americans believe that medicinal marijuana should be lawful.  The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation.  This example and others suggest that dynamic incorporation reduces the inertia that ordinarily makes it difficult for Congress to pass responsive legislation in criminal law.  What is more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place.

Dynamic incorporation also furthers separation of powers values.  Local and federal enforcement officials have crafted joint relationships that make local officials a critical part of federal enforcement.  This relationship is efficient, but it also enables local officials to evade state law constraints.  Local officials use this ability to exacerbate, among other things, sentencing disparity.  Dynamic incorporation rebalances power by giving state legislatures the opportunity for greater oversight of enforcement discretion, enhancing enforcement accountability.

July 7, 2019 in Marijuana Legalization in the States, Offense Characteristics, Who Sentences | Permalink | Comments (2)

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)

SCOTUS, in final order of OT 2018, adds two more federal criminal cases to docket for next Term

The Supreme Court released its final order list for the Term today, and it unsurprisingly starts with a bunch of remands based on its recent big criminal rulings.  I will do a distinct post on those remands, and here will instead focus on a few of the 11+ cases in which SCOTUS granted certiorari review for hearing the cases in the fall.  Most of these cases (some of which are consolidated) deal with civil issues, but I see two that are federal criminal matters: Kelly, Bridget v. United States, No. 18-1059, and Shular, Eddie v. United States, No. 18-6662.

SCOTUSblog has this page covering Kelly, which emerges from the high-profile "Bridgegate" scandal in New Jersey and present this issue:  "Whether a public official 'defraud[s]' the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision."

And the Shular case is yet another case raising an important technical issue in the application of the Armed Career Criminal Act, with the cert petition presenting this question: "Whether the determination of a 'serious drug offense' under the Armed Career Criminal Act requires the same categorical approach used in the determination of a 'violent felony' under the Act?"

Last but not last, the SCOTUS order list ends with a cert denial in a South Carolina case, McGee v. McFadden, No. 18-7277, which prompted an eight-page dissent from Justice Sotomayor starting this way:

Pro se petitioner Shannon McGee has a strong argument that his trial and resulting life sentence were fundamentally unfair because the State withheld material exculpatory evidence.  See Brady v. Maryland, 373 U. S. 83, 87 (1963).  The state courts offered flawed rationales for rejecting that claim. Nevertheless, the District Court denied McGee federal habeas relief, and both the District Court and the U.S. Court of Appeals for the Fourth Circuit summarily declined to grant McGee a “certificate of appealability” (COA), 28 U.S.C. §2253(c), concluding that his claim was not even debatable.  Without a COA, McGee cannot obtain appellate review on the merits of his claim.  See ibid.  Because the COA procedure should facilitate, not frustrate, fulsome review of potentially meritorious claims like McGee’s, I would grant the petition for writ of certiorari and reverse the denial of a COA.

June 28, 2019 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 in Gun policy and sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Friday, June 21, 2019

SCOTUS finds mens rea of "knowing" distributes in gun statute in Rehaif

The Supreme Court ruled for a federal criminal defendant today in classic criminal law mens rea case in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here). Justice Breyer authored the opinion for the Court, which starts this way:

A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.”  Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Justice Alito penned a lengthy dissent, which was joined by Justice Thomas and starts this way:

The Court casually overturns the long-established interpretation of an important criminal statute, 18 U. S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question.  That interpretation has been used in thousands of cases for more than 30 years.  According to the majority, every one of those cases was flawed. So today’s decision is no minor matter.  And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law.  It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.

Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions.  Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts.  A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review.

June 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 19, 2019

"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)

Tuesday, June 18, 2019

"Most US drug arrests involve a gram or less"

The title of this post is the title of this new short piece by Joseph Kennedy (which condenses some of his really important work set forth in this recent full article, "Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"). Here are excerpts:

U.S. drug laws are designed as if every offender was a dedicated criminal like Walter White, treating the possession or sale of even small quantities of illegal drugs as a serious crime requiring serious punishment.

I have studied the war on drugs for a number of years.  Last December, my colleagues and I published a study on U.S. drug arrests, showing that roughly two out of every three arrests by state and local law enforcement target small-time offenders who are carrying less than a gram of illegal drugs.

Virtually all states treat as felonies the sale of any amount of illegal drugs.  The thinking behind these laws is that you cannot catch the big fish without catching some minnows as well.  Many states also treat the mere possession of any amount of a hard drugs, such as cocaine, heroin or meth/amphetamine, as a felony....

We wanted to find out how often the police made arrests involving large quantities of drugs.  To make things manageable, we narrowed our study to three evenly spaced years, 2004, 2008 and 2012.  The resulting data set contained over a million cases, with usable data found in over 700,000 cases.  We believe our study is the most comprehensive study of drug arrest quantity undertaken to date....

Our study found that, by and large, state and local police agencies are arresting small fish, not big ones.  Two out of three drug offenders arrested by state and local law enforcement possess or sell a gram or less at the time of arrest. Furthermore, about 40% of arrests for hard drug are for trace amounts — a quarter of a gram or less.

Because possessing any amount of a hard drug and selling any illegal drug is a felony in virtually every state, the small size of these quantities matter.  They suggest that very minor offenders face felony liability.  Felony convictions make it difficult for ex-offenders to secure good jobs.  They carry many other harmful collateral consequences.

There are few truly big, or even medium-sized, offenders in the remaining arrests.  Arrests for quantities of hard drugs above five grams range between 15 and 20 percent of all arrests, and arrests for a kilogram or more are less than 1%.

What’s more, the racial distribution of these small quantity arrests reveal importance differences between arrests for different types of drugs.

Our study confirms that blacks are disproportionately arrested for crack cocaine offenses, as are whites for meth/amphetamine and heroin offenses.  When it comes to possession of a quarter gram or less, police arrest almost twice as many blacks as whites for crack cocaine.  However, they arrest almost four times as many whites as blacks for heroin and eight times as many whites as blacks for meth/amphetamine.

Offenders of color are, by and large, not significantly more serious offenders in terms of quantity of drugs.  They just possess and sell drugs that are the most frequent target of arrest.  Our study showed about twice as many arrests for crack cocaine as for meth/amphetamine and almost four times as many arrests for crack cocaine as for heroin.

Finally, this study shows that 71% of drug arrests are not for hard drugs, but for marijuana.  The majority of those arrests are also for tiny quantities: 28% for trace amounts and almost 50% for a gram or less.  Once again, blacks are disproportionately arrested for marijuana offenses, making up about a quarter of all marijuana arrests despite being about 13% of the population.

Illegal drugs are ultimately sold in small quantities to users, so it’s not surprising that there are more small quantity offenders in the pool of drug arrestees.  But this study suggests that the majority of state and local drug enforcement resources are spent catching these small fish.  The drug war is not being waged primarily against the Walter Whites, but against much less serious offenders.

Prior related post:

June 18, 2019 in Data on sentencing, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (4)

Monday, June 17, 2019

Via lengthy opinions, SCOTUS preserves "dual sovereignty" doctrine in Gamble

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding "dual sovereignty" doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court's majority opinion, authored by Justice Alito, gets started:

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so "to address the proper role of the doctrine of stare decisis." Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch's dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.

June 17, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, June 15, 2019

"Criminal Clear Statement Rules"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and Joseph Edward Kennedy available via SSRN. Here is its abstract:

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive.  Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws.  The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face.  But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes.

The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers.  Legislatures can overcome those values, but only if they do so affirmatively and unambiguously.  Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values.  Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. 

The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner.  In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules.  One rule would create a default presumption of a knowing mental state requirement for material elements.  The other would impose a substantial harm requirement.  Both would markedly improve the state of modern criminal law.

June 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, June 10, 2019

Supreme Court unanimously affirms ACCA sentence based on prior burglary conviction in Quarles

The Supreme Court this morning somewhat clarified the operation of its convoluted Armed Career Criminal Act jurisprudence through a unanimous opinion in Quarles v. US, No. 17-778 (S. Ct. June 10, 2019) (available here).  Here is how Justice Kavanaugh's opinion for the court get started:

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.”  Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U. S. 575, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added).

The exceedingly narrow question in this case concerns remaining-in burglary.  The question is whether remaining in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit.

The most interesting aspect of Quarles may be the short concurrence by Justice Thomas, which makes these points:

This case demonstrates the absurdity of applying the categorical approach to the enumerated-offenses clause. The categorical approach relies on a comparison of the crime of conviction and a judicially created ideal of burglary. But this ideal is starkly different from the reality of petitioner’s actual crime: Petitioner attempted to climb through an apartment window to attack his ex-girlfriend.

More importantly, there are strong reasons to suspect that the categorical approach described in Taylor v. United States, 495 U. S. 575 (1990), is not compelled by ACCA’s text but was rather a misguided attempt to avoid Sixth Amendment problems. See Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 21–23).  Under our precedent, any state burglary statute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute. A jury could readily determine whether a particular conviction satisfied the federal definition of burglary or instead fell outside that definition. See Ovalles v. United States, 905 F. 3d 1231, 1258–1260 (CA11 2018) (W. Pryor, J., concurring). Moreover, allowing a jury to do so would end the unconstitutional judicial factfinding that occurs when applying the categorical approach. See, e.g., Dimaya, supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 22– 23); Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2); Descamps v. United States, 570 U. S. 254, 280 (2013)...

Of course, addressing this issue would not help petitioner: He has not preserved a Sixth Amendment challenge. Moreover, any reasonable jury reviewing the record here would have concluded that petitioner was convicted of burglary, so any error was harmless.

Because the categorical approach employed today is difficult to apply and can yield dramatically different sentences depending on where a burglary occurred, the Court should consider whether its approach is actually required in the first place for ACCA’s enumerated-offenses clause.  With these observations, I join the opinion of the Court.

June 10, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, June 06, 2019

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, June 04, 2019

"Reconsidering The 'Violent Offender'"

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy.  In that post, I noted some early draft of interesting papers from the project (which linked here in final form), and I just recently saw a new paper with the title that serves as the title of this post.  This new paper is authored by James Austin, Vincent Schiraldi, Bruce Western and Anamika Dwivedi, and here is part of its starting text:

People convicted of violent crimes have always been treated harshly by the criminal justice system, but in the four decades of rising incarceration rates from the early 1970s, punishment of the violent offender intensified disproportionately. Under President Bill Clinton, bipartisan consensus cemented the 1994 federal crime bill, enacting stricter sentencing laws for violent offenses at the federal level and incentivizing the same in the states.

Two decades later, even as President Barack Obama called for a reexamination of U.S. sentencing laws in 2015, he noted, “there are people who need to be in prison, and I don’t have tolerance for violent criminals” (C-SPAN 2015).  That same year, a Washington Times opinion piece by Newt Gingrich described criminal justice reform as a “rare area of bipartisan agreement in an otherwise sharply divided Congress,” but added, “we all agree that violent, dangerous criminals should be in prison, and the cost of incarcerating them is money well spent” (Gingrich and Nolan 2015).  Following suit, in 2017, Senator Kamala Harris, a self-identified “progressive” prosecutor stated that “we must maintain a relentless focus on reducing violence and aggressively prosecuting violent criminals” (Marcetic 2017).

Demonizing people as violent has perpetuated policies rooted in fear rather than fact. In this paper, we break from the tradition of punitiveness toward people convicted of violent offenses and argue that the violent offender label breaches the principle of parsimony, distorts proportionality, and fails as a predictive tool for future violent behavior. The label disproportionately affects people of color — black and Hispanic people comprise larger shares of people incarcerated for violent offenses in state prisons than white people (Bronson and Carson 2019).  In short, the violent offender label offers little to criminal justice policy.  Instead, justice policy should focus on those who actually commit violence, mitigate responses based on the experience of violent victimization, and discount the violent offender label as predictive of future violence.

Convincing policymakers and the public to change the approach to people charged with or convicted of violent offenses will require active education around the truths of violent offending alongside a significant cultural change. Affirming well-established criminal justice principles of parsimony and proportionality should take priority over a politics of fear.

We begin by detailing the social context and life histories that surround violent offending, and argue the case for parsimonious use of punishment.  While more serious and violent offenses may merit a proportionally greater response, the principle of parsimony reminds us that the punishment for violent offending should be the least coercive response necessary to achieve justice (Travis, Western, and Redburn 2014).  When we account for the life histories of victimization among incarcerated people, and the situational character of the violence in their lives, the principle of parsimony must admit mercy and forbearance.

June 4, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Wednesday, May 29, 2019

Oklahoma makes retroactive its 2016 defelonization reform initiative

Still more proof that deep red states can be deeply committed to deep criminal justice reforms comes in this local article from Oklahoma headlined "Governor signs legislation to make State Question 780 retroactive." Here are the encouraging particulars:

Gov. Kevin Stitt on Tuesday signed into law a criminal justice reform measure that will make State Question 780 retroactive.  Voters passed the state question in 2016 to reclassify some drug possession and property crimes as misdemeanors instead of felonies.

The retroactivity legislation, which takes effect Nov. 1, establishes an expedited commutation process for people who are serving felony prison sentences for offenses that are now misdemeanors. It also provides a simplified path to expungement for people with old drug possession and low-level property convictions.

Lawmakers estimated that 500 to 800 people could be released on simple possession charges and up to 60,000 people could have their records expunged under the bill.

The legislation will allow families to be reunited and will contribute to workforce development, said Kris Steele, executive director of Oklahomans for Criminal Justice Reform, a nonpartisan coalition that pushed for the retroactivity measure and other legislative reforms.  "Tens of thousands of Oklahomans will be eligible to apply to have their felony taken off their record, which will open up new and hopefully more fruitful employment opportunities for them," Steele said....

"Making the reforms in State Question 780 retroactive not only upholds the will of the people, the voters of our state, but it also opens up a lot of opportunities for individuals who have that scarlet letter hanging around their neck to have that removed and it affords those individuals the opportunity to move forward in life in a very healthy and positive way," he said.

The law directs the Oklahoma Pardon and Parole board to establish an accelerated, single-stage commutation docket for applicants currently serving time who have been convicted of a crime that has been reclassified from a felony to a misdemeanor.  Typically, applicants seeking commutation must pass through a two-stage review process with the Pardon and Parole Board in order to receive a favorable recommendation to the governor, who has final say about whether to grant a commutation.

May 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 24, 2019

Is Prez Trump gearing up for a big Memorial Day clemency push for servicemembers?

The question in this post is prompted by lots of new news reports, such as this lengthy one from Fox News headlined "Trump weighs pardons for servicemembers accused of war crimes, as families await decision." Here are excerpts:

President Trump is considering potential pardons for military members and contractors accused of war crimes as Memorial Day approaches -- deliberations that have prompted warnings from critics that the move could undermine the rule of law but also raised the hopes of their families who say the servicemembers were wrongly prosecuted.

Jessica Slatten, in an interview Thursday, told Fox News she's praying for Trump to pardon her brother, Nicholas Slatten, one of several Blackwater contractors charged in the shooting deaths of Iraqi civilians in September 2007. "Nick is innocent and our family is terrified that he will die in prison for a killing that someone else confessed to multiple times," she said. The

Blackwater case, and the 2007 massacre at the heart of it, is one of the more controversial portfolios before the president. The New York Times first reported that Trump was weighing possible pardon decisions on an expedited basis going into the holiday weekend.

Speaking to reporters Friday, Trump confirmed he’s looking at a handful of cases, while indicating he could still wait to make his decision. “We teach them how to be great fighters, and then when they fight, sometimes they get really treated very unfairly, so we’re going to take a look at it,” he said. “[The cases are] a little bit controversial. It’s very possible that I’ll let the trials go on, and I’ll make my decision after the trial.”

The review spurred harsh criticism from Democratic lawmakers as well as former top military officials, especially since not all of the accused have faced trial yet. "Obviously, the president can pardon whoever he thinks it's appropriate to pardon, but ... you have to be careful as a senior commander about unduly influencing the process before the investigation has been adjudicated," said retired Navy Adm. William McRaven, former head of Joint Special Operations Command.

Sen. Dianne Feinstein, D-Calif., said in a statement: "If he follows through, President Trump would undermine American treaty obligations and our military justice system, damage relations with foreign partners and give our enemies one more propaganda tool."

The lawyers and family members of the accused, however, insist these cases are not as clear-cut as they've been portrayed -- and, to the contrary, have been marred by legal problems. The cases include those of former Green Beret Maj. Mathew Golsteyn, who admitted to killing a suspected Taliban bomb maker; Navy SEALS Special Operations Chief Edward Gallagher, whose own SEALS turned him in for allegedly shooting unarmed civilians and killing a 15-year-old ISIS suspect in his custody with a knife; four Marine snipers who were caught on video urinating on the corpses of suspected Taliban members; and Slatten.

Slatten is one whose case did go to trial. In fact, he faced three of them. The first ended in a conviction, but it was later thrown out -- as federal judges said he should have been tried separately from three other co-defendants, one of whom said he, and not Slatten, fired the first shots.

The second ended in a mistrial, and the third resulted in a guilty verdict. He faces a mandatory life sentence without parole, but his legal team is fighting to set him free. "Prosecuting veterans for split-second decisions in war zone incidents is wrong," Slatten's attorney said in a letter to the White House counsel's office obtained by Fox News. "Prosecuting ones for killings they did not commit is doubly so."...

Three of the other Blackwater contractors involved in the incident -- Paul Slough, Evan Liberty and Dustin Heard -- were convicted of manslaughter, but the D.C. Court of Appeals ruled that their mandatory 30-year sentence was a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

The sentences had been so severe due to a charge related to the use of machine guns. The court noted that the charge was based on a statute meant to combat gang violence, not contractors in a war zone using government-issue weapons. Their cases were sent back down to a lower court, and they are awaiting new sentences.

It is unclear if Slough, Liberty or Heard are among those Trump is considering for pardons, but Slough's wife Christin is hoping for the best. "I think that we're cautiously optimistic," she told Fox News. She said that her husband is "more than well deserving" of a pardon and is hoping that Trump will come through where other administrations have not....

Martin Dempsey, former chairman of the Joint Chiefs of Staff, warned of the consequences that pardons could bring. "Absent evidence of innocence of injustice the wholesale pardon of US servicemembers accused of warcrimes signals our troops and allies that we don't take the Law of Armed Conflicts seriously," Dempsey tweeted Tuesday. "Bad message. Bad precedent. Abdication of moral responsibility. Risk to us."

Democratic presidential candidate Pete Buttigieg also expressed concern. In a Washington Post interview, the Afghanistan War veteran described the potential pardons as "so dangerous and so insulting to people who've served."

Trump's decision could come in time for the Memorial Day holiday, though he indicated Friday he might take longer. Despite warnings that a pardon might not be appropriate for cases that have not concluded, Christin Slough noted Trump is not a "traditional president." She said he is "more interested in what's right," than how things are normally done.

May 24, 2019 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Florida completes execution of killer of 10 women in 1984

As detailed in this AP article, a "serial killer who terrorized Florida with a murderous spree that claimed 10 women in 1984 was put to death Thursday, his execution witnessed by a woman who survived one of his attacks and aided in his capture."  Here is more:

Bobby Joe Long, 65, was pronounced dead at 6:55 p.m. Thursday following a lethal injection at Florida State Prison.  Long had no last words, simply closing his eyes as the procedure began, witnesses said.

The killer terrified the Tampa Bay area for eight months in 1984 as women began showing up dead, their bodies often left in gruesome poses.  Most were strangled, some had their throats slit, and others were bludgeoned.  Law enforcement had few clues until the case of Lisa Noland, who survived one of Long's attacks.  She witnessed Thursday's execution from the front row.

Just 17 in 1984, Noland was abducted by Long outside a church that year.  He raped her but ultimately let her go free.  She left evidence of his crimes on the scene and gave police details leading to his capture.  Long confessed to the crimes, receiving 28 life sentences and one death sentence for the murder of 22-year-old Michelle Simms. 

Noland positioned herself in the witness room where she hoped Long would see her.  "I wanted to look him in the eye. I wanted to be the first person he saw.  Unfortunately, he didn't open his eyes," she said.  "It was comforting to know this was actually happening."  She said she began to cry after she left the room once it was over.  “The peace that came over me is a remarkable feeling,” she said.

Another witness wore a polo shirt with a photo of one victim on the front and the words "Gone But Not Forgotten."  On the back were photos of all 10 slaying victims and the words, "The Ones That Matter."...

Investigators were baffled by the trail of bodies Long left around Tampa Bay.  Artiss Ann Wick was the first killed, in March 1984.  Nine others followed.  Law enforcement had few clues until Noland told her story. 

Noland said beforehand that she knew what she would have said if she could have addressed Long. Said Noland: "I would say 'Thank you for choosing me and not another 17-year-old girl.'"...

The execution was the first under Gov. Ron DeSantis, who took office in January.

May 24, 2019 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (1)

Monday, May 20, 2019

Waiting for Godot ... Gundy

Waiting-for-godot1-740x1024With apologies to Samuel Beckett, the following script came to mind t capture how I am feeling after another morning of SCOTUS rulings without a decision in one interesting criminal case argued way back in early October:

ESTRAGON: Charming spot. (He refreshes SCOTUSblog.) Inspiring prospects. (He turns to Vladimir.) Let's do some other work.

VLADIMIR: We can't.

ESTRAGON: Why not?

VLADIMIR: We're waiting for Gundy.

ESTRAGON: (despairingly). Ah! (Pause.) You're sure it won't be DIGed?

VLADIMIR: What?

ESTRAGON: That we might wait and wait and not get a ruling.

VLADIMIR: They said by June. (They look at the calendar.) Do you see any others cases taking this long?

ESTRAGON: What others?

VLADIMIR: I don't know. A civil case.

ESTRAGON: What about all the capital cases?

VLADIMIR:  What are you insinuating? That we've come to the wrong place?

ESTRAGON: It should be here by now.

VLADIMIR: Then didn't say for sure it'd come.

ESTRAGON: And if it doesn't come?

VLADIMIR: We'll come back next decision day.

ESTRAGON: And then the decision day after that.

VLADIMIR: Possibly.

ESTRAGON: And so on.

VLADIMIR: The point is—

ESTRAGON: Until Gundy comes.

May 20, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Has anyone kept track of total ACCA case GVRs through the years (or estimated total time spent on ACCA churn)?

The question in the title of this post is prompted by the one notable criminal justice element of the Supreme Court's order list this morning. At the very end of a relatively short order list, Justice Alito (joined by Justice Thomas) dissents from the Court's decision to GVR a case back to the Eleventh Circuit (which is what the US Solicitor General urged the Court to do).  Here is the full dissent:

The Court grants, vacates, and remands in this case, apparently because it harbors doubt that petitioner’s 1987 conviction under Florida law for battery on a law enforcement officer qualifies as a “violent felony” as defined by the Armed Career Criminal Act’s elements clause, which covers a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  18 U. S. C. §924(e)(2)(B)(i).  I share no such doubt: As the case comes to us, it is undisputed that petitioner was convicted of battery on a law enforcement officer after he “‘struck [an] officer in the face using a closed fist.’”  App. to Pet. for Cert. A–1, p. 11. See Fla. Stat. §784.03(1)(a) (2018) (a person commits battery when he “[a]ctually and intentionally touches or strikes another person against the will of the other,” among other things).  Because the record makes “perfectly clear” that petitioner “was convicted of battery on a law enforcement officer by striking, which involves the use of physical force against the person of another,” App. to Pet. for Cert. A–1, at 11, I would count the conviction as a “violent felony” under the elements clause and would therefore deny the petition.  Mathis v. United States, 579 U. S. ___, ___ (2016) (ALITO, J., dissenting) (slip op., at 6).

Last year in this post, I expressed my ACCA exhaustion by asking "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  And if I was much more clever and had endless time, I might this year try to come up with some account of ACCA jurisprudence that uses an elaborate array of Game of Thrones references (e.g., the now-long-dead residual clause could be cast as evil Joffrey and other clauses could be other Lannisters and other characters could be key SCOTUS rulings assailing or defending clauses).   

I make the GoT reference in part because I know I can find on the Internet somewhere a detailed accounting of characters killed in that long-running fictional series.  In turn, I wonder if I can find on the Internet somewhere any accounting of cases sent back by SCOTUS in the long-running (and likely never-ending) drama that is modern ACCA jurisprudence.

May 20, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 16, 2019

"Promoting Equality Through Empirical Desert"

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

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability.  This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory.   Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform.  Chief among them: it draws from community intuitions, and community intuitions — as the theory acknowledges — are sometimes immoral.  In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice — and beyond.  Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology.   Moreover, it can do even better. T  his Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination.  It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections.  Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them.  In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

May 16, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

California felony murder revisions showcase, yet again, the varied challenges of giving retroactive effect to sound reforms

The Marshall Project has this notable new article about the application of California's new felony murder law under the headline "California Law Says This Man Isn’t a Murderer. Prosecutors Disagree." Here are excerpts:

After California changed its murder laws last fall, Neko Wilson was the first man to walk free. Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County.  No one accused him of killing anyone, or even being in the family’s home that night, but prosecutors said he helped plan the break-in.  At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs.

But in September 2018, the legislature limited murder charges to people who actually participate in a slaying. And so in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles....

That freedom may be short-lived.  Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California’s constitution and that freeing him was a mistake.  A hearing is set for May 16.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.  As prisoners around the state seek release, some judges have agreed with the constitutional argument and others have rejected it, setting up a fight that is likely to end up in the state’s highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration.  After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows.  But the trend has angered some prosecutors, who say lawmakers are risking public safety.

May 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)