Monday, January 27, 2020

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, January 26, 2020

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

January 26, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, January 23, 2020

"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"

Fentanylgraphic_map_0The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:

The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl.  Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.”  However, despite a change in discourse, draconian policies have persisted and in many cases been expanded.  This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.

Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation.  At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act.  In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.

Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more.  These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.  Indeed, such proposals risk compounding the overdose crisis.

Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use.  There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison.  Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars.  A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.

The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels.  The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration.  To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.

In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences.  This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.

January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, January 18, 2020

Former US Rep Chris Collins sentenced to 26 months for insider trading

As reported in this Politico piece, on Friday "former Rep. Chris Collins was sentenced to 26 months in prison for an insider trading scheme that led to his arrest and resignation from Congress." Here is more about a notable federal sentencing:

The Western New York Republican pleaded guilty in October, accused of passing illicit stock tips to his son from the White House lawn during a Congressional picnic.

Judge Vernon Broderick handed down the sentence Friday in Manhattan federal court along with a $200,000 fine, after the disgraced Congressman broke down in sobs as he pleaded for mercy for himself and his son. “I violated my core values and there is no excuse,” Collins said, breathing heavily. “What I have done has marked me for life.”

Collins, the first member of Congress to back Donald Trump for president, was charged in August 2018 with securities fraud, wire fraud and making false statements to FBI agents — part of an alleged scheme to share confidential information about an Australian biotech company whose board he sat on.

When he learned of the results of a failed trial for a multiple sclerosis drug, he called his son Cameron Collins to alert him — allowing the son and his fiancee’s father to unload Innate Immunotherapeutics stock before it tanked and avoid hundreds of thousands of dollars in losses.

He initially denied any wrongdoing and was reelected despite being under federal indictment, but ultimately pleaded guilty to one count of conspiracy to commit securities fraud and one count of lying to the FBI. He resigned his seat ahead of the plea....

Broderick said prison time was necessary to instill respect for the law. He said he did not buy Collins’ argument that his crime was one of emotion and faulted him for leaving his constituents with no representation in Congress. “I don’t view this as a spur of the moment loss of judgment,” Broderick said.

Collins faced a maximum of ten years in prison, but agreed in a plea deal to accept a sentence of up to 57 months. Prosecutors asked the judge to hit him with a sentence of 46 to 57 months, arguing that a hefty sentence was necessary to send the message that abuse of power would not be tolerated....

The former congressman asked to be spared jail time and be sentenced to probation, saying he had shown remorse and already paid a price for his crimes through the loss of his political career. “Chris is a fundamentally good and decent human being,” said his attorney, Jonathan Barr.

His son Cameron and Stephen Zarsky, the father in law of Cameron’s fiancee, have also pleaded guilty for their role in the insider trading scheme. Collins asked the judge to show mercy for his son, even if he himself was not spared.

January 18, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3)

Monday, January 13, 2020

Rounding up previews of SCOTUS oral argument in "Bridgegate" case

More than six years after an infamous partial closing of the George Washington Bridge, and more than three years after a few staffers to then-New Jersey Governor Chris Christie were convicted of federal crimes resulting from this incident, the US Supreme Court will be hearing oral argument tomorrow in Kelly v. United States.   This affair became known as "Bridgegate," and here is how the case's question is presented in the initial  petition for certiorari:  "Does a public official 'defraud' 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?"

Though this case is more about the reach and application of federal criminal statutes than about sentencing, white-collar cases (and political cases) are often worth watching closely because of how they can skew, both jurists and advocates, the usual political divisions of who is pro-defendant and pro-government.  In light of that reality, I am especially interested in how the newer Justices will engage in this case.  Helpfully, Kelly has generated lots of previews from others, so I can be content here to do a quick round-up:

And back in September, SCOTUSblog had a little on-line symposium on the case, which can be found at this link.

January 13, 2020 in Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Sunday, January 12, 2020

Mississippi Supreme Court upholds 12-year prison term for mere possession of cell phone in jail

If anyone is looking for a recent example of why and how America persistently earns its status as incarceration nation, look no further than this local article, headlined "Miss. Supreme Court upholds 12-year sentence of man convicted for having cellphone in jail."   Here are the ugly details:

The Mississippi Supreme Court affirmed the 12-year sentence of a man convicted for having a cellphone in jail on Thursday.

Willie Nash was originally booked in the Newton County Jail for a misdemeanor charge when he asked a jailer to charge his smartphone. The jailer confiscated the phone and brought it to the sheriff’s deputy in charge....

A jury convicted Nash of possessing the cellphone in a correctional facility, a felony that carries three to 15 years in prison.  On Aug. 23, 2018, a judge sentenced Nash to 12 years in prison, telling Nash to “consider himself fortunate” for not being charged as a habitual offender based on his prior burglary convictions. Nash was also fined $5,000....

On appeal, Nash challenged the sentence, arguing a 12-year sentence was “grossly disproportionate to his crime” and in violation of the Eighth Amendment....  As for the proportionality of the sentence, the court ruled that while “obviously harsh," the sentence was not grossly disproportionate, and the court affirmed the conviction and sentence.

In a separate written opinion, Presiding Justice Leslie D. King agreed the court reached the correct ruling based on case law, but wrote of his concern that the case as a whole “seems to demonstrate a failure of our criminal justice system on multiple levels.”

King said it is probable that the Newton County Jail’s booking procedure was not followed in Nash’s case, allowing him to enter the jail with his phone.  King also noted that Nash’s behavior indicated that he was not aware that inmates could not bring phones into the correctional facility.  Justice King pointed out that Nash voluntarily showed the jailer his phone when asking him to charge it, suggesting that he was not told during booking that he was not allowed to keep his phone.

King also noted that Nash’s criminal history reveals a change in behavior, with his last conviction of burglary being in 2001, which he was sentenced to seven years in prison for.  For eight to 10 years, King said Nash had stayed out of trouble with the law. He also has a wife and three children who depend on him. Based on the nature of his crime, King said the judge should have used his discretion to consider a lesser sentence....

According to the Mississippi Department of Corrections website, Nash’s tentative release date is Feb. 2, 2029.

The full Mississippi Supreme Court opinion in this case is available at this link, and it serves to highlight how easy it is to use extreme and cruel punishments to justify more extreme and cruel punishments.  Because the defendant here is apparently parole eligible in as few as three years, the trial judge was not off-base when telling him that he was lucky not to be facing a true 15-year mandatory minimum under the state's habitual offender law. And the Supreme Court of Mississippi was able to cite to other cases of defendants getting even harsher sentences(!) for mere cell phone possession to conclude that this harsh sentence was not constitutionally problematic.

With the scale of punishments set so severely for so long in so many places throughout our country, I fear it has become almost routine for many judges and prosecutors to send people off to live in cages for years and years without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation.  I suspect that, if told in general terms that a citizen had been sent to prison for more than a decade for having a cell phone in the wrong place, most of us would think that this story was coming from China or Russia or some other country with a poor human rights record.  But, in fact, it is just another day in the United States, the supposed land of the free. Sigh.

January 12, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Wednesday, January 01, 2020

Chief Justice's "2019 Year-End Report on the Federal Judiciary" again provides federal criminal caseload highlights

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary.  The 2019 version from Chief Justice John G. Roberts can be found at this link, and here are a few sentences that capture the spirit of its timely substantive message:

In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

The report includes an Appendix on the "Workload of the Courts" which includes some notable federal criminal justice caseload data.  Here are excerpts:

In the regional courts of appeals, filings fell two percent to 48,486.... Criminal appeals rose two percent....

Criminal defendant filings (including those for defendants transferred from other districts) [in U.S. district courts] rose six percent to 92,678.  Defendants charged with immigration offenses went up 13 percent, largely in response to an 81 percent increase in defendants accused of improper entry by an alien.  The southwestern border districts received 81 percent of national immigration crime defendant filings.  Drug crime defendants, who accounted for 28 percent of total filings, grew five percent, although defendants accused of crimes associated with marijuana decreased 28 percent.  Defendants prosecuted for firearms and explosives offenses climbed eight percent, continuing an upward trend that began in 2014.  Increases also were reported for filings involving general offenses, regulatory offenses, justice system offenses, and violent offenses.  The number of filings related to traffic offenses and sex offenses decreased....

Cases activated in the pretrial services system, including pretrial diversion cases, rose nine percent to 108,606.  A total of 128,904 persons were under post-conviction supervision on September 30, 2019, a reduction of less than one percent from the total a year earlier.  Persons on that date serving terms of supervised release after leaving correctional institutions changed little, increasing by 9 persons to 113,198.

January 1, 2020 in Data on sentencing, Offense Characteristics | Permalink | Comments (0)

Monday, December 30, 2019

Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable

On Friday, the Second Circuit released a notable sentencing opinion in US v. Mumuni, No. 18‐1604 (2d Cir. Dec. 27, 2019) (available here).  The start of the panel's majority opinion provides a basic overview of the key issue in the appeal:

In this terrorism case, the Government appeals the substantive reasonableness of the sentence imposed on Defendant‐Appellee Fareed Mumuni (“Mumuni”).  He was convicted of, inter alia, conspiring to provide material support to the Islamic State of Iraq and al‐Sham (“ISIS”) and attempting to murder a federal agent in the name of ISIS.  His advisory sentence under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’ imprisonment. The sole question on appeal is whether the United States District Court for the Eastern District of New York (Margo K. Brodie, Judge) erred — or “abused its discretion” — by imposing a 17‐ year sentence, which constitutes an 80% downward variance from the advisory Guidelines range. We conclude that it did. Accordingly, we REMAND the cause for resentencing consistent with this opinion.

Just over 30 pages later, the majority provides this summary of its rulings:

(1) Mumuni’s sentence of 17 years’ imprisonment — which constitutes an 80% reduction from his recommended Guidelines range of 85 years — is substantively unreasonable in light of his exceptionally serious conduct involving a domestic terrorist attack against law enforcement in the name of ISIS.

(2) Where a district court has accepted a defendant’s guilty plea and his allocution to the elements of each charged offense, it cannot make findings of fact during sentencing that contradict or otherwise minimize the conduct described at the defendant’s plea hearing.

(3) Where a sentencing court opts to compare the relative culpability of co‐defendants, it cannot selectively rely on a factor when it serves a mitigating function in one case, but then subsequently ignore the same factor when it serves an aggravating function in the other case.

(4) A defendant’s legally‐required compliance with institutional regulations during his term of pre‐trial and pre‐ sentencing detention is not a substantially mitigating factor for purposes of sentencing.

(5) At Mumuni’s resentencing, the District Court, on the basis of the record that supported Mumuni’s guilty plea, shall accord substantially greater weight to the following 18 U.S.C. § 3553(a) factors: (a) the nature and circumstances of the offense; (b) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (c) the need for the sentence imposed to afford adequate deterrence to criminal conduct; and (d) the need to protect the public from further crimes of the defendant.

Judge Hall partially dissents, explaining that he thinks that the sentencing court needs to better explain its chosen sentence but making this point at the start of his opinion:

“We set aside a district courtʹs sentence as substantively unreasonable only if affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (quotation marks and ellipsis omitted) (emphasis added). As an initial matter, I do not believe the seventeen‐year sentence is shockingly low and, therefore, I must dissent in part.

December 30, 2019 in Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Thursday, December 26, 2019

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:

Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago.  That's the major conclusion from Governor Bill Lee's criminal justice investment task force....

Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety.  In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.

Among the task force's key findings:

  • Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
  • Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
  • Over half of prisoners released from custody are back in jail within three years
  • Half of local county jails are overcrowded
  • An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration

With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:

  • Expanding access to sentencing alternatives, like probation and treatment programs
  • Help more inmates transition successfully back into society
  • Increase educational opportunities
  • Improve community supervision programs
  • Reduce probation terms
  • Streamline the parole process
  • Rewrite the sentencing code (replacing the current one from 1989)

This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety."  Other states might also find these proposed avenues quite useful

December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, December 20, 2019

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

The title of this post is the title of this notable new article authored by Adam Gershowitz just posted to SSRN. Here is its abstract:

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

December 20, 2019 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, December 18, 2019

AG William Barr announces "Operation Relentless Pursuit" to combat violent crime in seven US cities

This new press release from the Justice Department reports that today "Attorney General William P. Barr announced the launch of Operation Relentless Pursuit, an initiative aimed at combating violent crime in seven of America’s most violent cities through a surge in federal resources."  Here is more from the press release:

Joined at a press conference in Detroit, Michigan, by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Acting Director Regina Lombardo, Drug Enforcement Administration (DEA) Acting Administrator Uttam Dhillon, FBI Director Christopher A. Wray, and U.S. Marshals Service Director Donald W. Washington, Attorney General Barr pledged to intensify federal law enforcement resources into Albuquerque, Baltimore, Cleveland, Detroit, Kansas City, Memphis, and Milwaukee — seven American cities with violent crime levels several times the national average.

“Americans deserve to live in safety,” said Attorney General William P. Barr.  “And while nationwide violent crime rates are down, many cities continue to see levels of extraordinary violence. Operation Relentless Pursuit seeks to ensure that no American city is excluded from the peace and security felt by the majority of Americans, while also supporting those who serve and protect in these communities with the resources, training, and equipment they need to stay safe.”

“The men and women of ATF are deeply committed to and focused on reducing crime gun violence in our communities,” said ATF Acting Director Regina Lombardo.  “We are proud that our efforts have significantly contributed to the historic reductions in violence that our nation has realized in recent years.  Operation Relentless Pursuit combines the resources of ATF, DEA, FBI, and U.S. Marshals to support our state and local law enforcement partners in those cities that — regrettably — continue to be plagued by rates of violent crime that are simply too high.  Through Relentless Pursuit, we pledge to hold accountable the trigger-pullers, firearm traffickers, violent criminals and those who supply them the guns to terrorize our communities.  ATF will aggressively utilize every available tool, including our crime gun enforcement teams, National Integrated Ballistic Information Network and firearms tracing to identify, investigate and support the prosecution of the most violent firearm offenders.”

“Drug traffickers — including cartels and street gangs — will stop at nothing to turn a profit, often using violence and intimidation to expand their reach,” said DEA Acting Administrator Uttam Dhillon.  “This targeted surge of resources will further strengthen our ability to work with our federal, state, and local partners to pursue the worst offenders and make our communities safer.” 

“The FBI remains committed to providing our specialized expertise and resources to assist our federal, state and local partners fighting violent crime,” said FBI Director Christopher A. Wray.  “We are here today to reaffirm our dedication to reducing violent crime in the cities selected for Operation Relentless Pursuit to combat the threats that arise from gangs and criminal enterprises that drive violence in the communities we are sworn to protect.”...

The operation will involve increasing the number of federal law enforcement officers to the selected cities, as well as bulking up federal task forces through collaborative efforts with state and local law enforcement partners.  The surge in federal agents will be complemented by a financial commitment of up to $71 million in federal grant funding that can be used to hire new officers, pay overtime and benefits, finance federally deputized task force officers, and provide mission-critical equipment and technology.  

December 18, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, December 17, 2019

Rick Gates gets sentence of 45 days in jail and a fine and community service (while co-defendant Paul Manafort has five more years in prison)

As reported in this CBS News piece, "Rick Gates, the former Trump campaign official and onetime business partner of Paul Manafort, was sentenced to 45 days in jail on counts of conspiracy and lying to federal investigators." Here is more:

Gates, 47, appeared in federal court in Washington to learn his sentence Tuesday. U.S. District Judge Amy Berman Jackson sentenced him to 36 months probation and 45 days behind bars, which he will be allowed to serve on weekends or under a schedule set by probation officers. He must also pay a fine of $20,000 over the course of 20 months, and complete 300 hours of community service.

Gates was one of six Trump associates charged in connection to special counsel Robert Mueller's investigation into Russian interference in the 2016 election. He pleaded guilty to two counts in February 2018, admitting he lied to federal investigators and helped Manafort conceal millions of dollars in overseas payments. Gates agreed to cooperate with the government, becoming the star witness in high-profile trials of three others charged in the Mueller probe: Manafort, Roger Stone and Greg Craig.

Because of his extensive cooperation with the government, federal prosecutors recommended that Jackson sentence Gates to probation, a much lighter punishment than the maximum 10 years in prison the charges allowed under federal guidelines.

Gates was Manafort's right-hand man and became his deputy when Manafort was named chairman of the Trump campaign in 2016. After Manafort was forced to step down over revelations about his work in Ukraine, Gates stayed on, becoming a liaison between the campaign and the Republican National Committee. He helped plan President Trump's inauguration before leaving for a job with a pro-Trump outside group.

At Manafort's trial on charges of bank fraud and other financial crimes, Gates provided crucial testimony against his former boss, telling jurors Manafort had instructed him to forge financial documents and IRS forms.

As folks may recall, Manafort was convicted at trial of some counts, pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.  And, according to the Bureau of Prisons inmate locator, Manafort now has a release date of Christmas Day 2024.

Prior related post:

December 17, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, December 12, 2019

"Second Looks & Criminal Legislation"

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

This Essay explores the relationship between second look sentencing and retributive theory by focusing on the primary vehicle for authorizing and distributing punishment in most American jurisdictions: criminal legislation.  Looking beyond debates over the import of evolving norms to desert judgments, the Essay argues that the central retributive issue presented by post-conviction judicial sentencing reductions is whether the long-term punishments imposed by criminal courts live up to the proportionality standards of any time period. 

Using the District of Columbia’s criminal statutes as a case study, the Essay explains how three pervasive legislative flaws — statutory overbreadth, mandatory minima, and offense overlap — combine to support (and in some instances require) the imposition of extreme sentences upon actors of comparatively minimal culpability.  The Essay argues that this code-based sentencing reality, when viewed in light of structural forces driving prosecutorial and judicial decisionmaking, provides very strong reasons to doubt the systemic proportionality of the severe punishments meted out in the District, as well as in other jurisdictions that suffer from similar legislative and structural problems.  And it explains why this epistemic uncertainty offers a compelling reason to authorize courts to reevaluate (and in appropriate cases reduce) severe punishments through second look sentencing reform — both in the District of Columbia and beyond.

December 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 11, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 09, 2019

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

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

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

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

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

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

Thursday, November 21, 2019

"Prosecuting Opioid Use, Punishing Rurality"

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

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

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

Wednesday, November 20, 2019

"The Latest Failure in the War on Drugs"

The title of this post is the title of this new New York Times commentary authored by Brandon D.L. Marshall and Abdullah Shihipar.  Here are excerpts:

[D]espite the recognition of drug use as a public health issue, some states have also introduced “drug-induced homicide” laws that put the responsibility of an overdose at the feet of the drug suppliers. In Rhode Island, for example, under “Kristen’s Law” a person who supplies drugs to someone who overdoses can be punished with a life sentence.

These laws have been enacted in at least 25 states, while a few more are considering adopting them. They represent a return to the outdated “war on drugs” approach, which decades of research has shown to be unsuccessful. It instead increases risks for those who use drugs, particularly minority populations and people of color....

People who supply drugs are often friends or family members of those who overdose and often use drugs themselves. In a national survey, more than two in five people who reported having sold drugs also said they meet the criteria for a substance use disorder.  Another analysis of drug-induced homicide news stories, conducted by the Health in Justice Action Lab at Northeastern University, found that 50 percent of people who were charged under drug-induced homicide laws were either friends, caretakers, partners or family members.  Drug transactions are not as simple as buyer and seller....

Proponents say that because these laws have good Samaritan provisions — which protect from criminal consequence those who seek emergency medical assistance at the scene of a suspected drug overdose — they will not discourage people from calling 911 to report an overdose.  However, while studies have shown that knowledge of good Samaritan protections is associated with a willingness to call 911 in the event of an overdose, people are still afraid to call because of fear they will be charged....

What’s more, putting drug users in jail will only worsen the overdose crisis.  People who have recently been released from prison are at much greater risk of overdosing than the public — up to 40 times greater in some cases.  Most jails and prisons across the country do not have medications to treat opioid addiction, which means that when people are released they are especially vulnerable to fatal overdoses.

The war on drugs has hit communities of color the hardest, with Black and Latinx people much more likely to be arrested for simple possession and to receive harsher sentences than whites, despite rates of drug use being similar across all communities.  Even with promises from the authorities to pursue a public health approach, racial disparities in drug-related arrests persist.  A study conducted in Washington State found that among people who had received treatment for substance abuse disorder, black clients were more likely to have been arrested on substance-related charges compared to white clients.  The rate of Fentanyl-related overdose deaths has risen most sharply for black and Latinx people, so we can only expect that drug-induced homicide legislation will disproportionately and negatively affect them.

There has been progress: The Massachusetts Supreme Court recently struck down a drug-induced homicide conviction.  The court argued that the prosecution did not provide sufficient evidence that Jesse Carrillo knew that the heroin he gave to a fellow student, Eric Sinacori, would cause a deadly overdose.  Similar arguments can be made for other cases.  Fentanyl has so contaminated the drug supply that it is hard to determine how much control individual sellers have on quality and content.  Promoting the use of tools like fentanyl test strips, which can allow people to check their drugs before selling or using drugs, should be promoted.  Indeed, when we recently collaborated with other researchers on a study of Rhode Islanders at risk of fentanyl overdose, we found that those with a history of drug dealing were among the most likely to use fentanyl test strips.

Punitive measures threaten the progress we have made on the overdose crisis.  They push people into the shadows, increase overdose risk and contribute to racial disparities.  If the authorities are serious about treating drug use as a public health issue, then they have to let go of this longstanding fixation on punishment.

November 20, 2019 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (2)

Monday, November 18, 2019

Interesting look at a federal sentencing judge (and claims of judge shopping) in college admissions scandal cases

This new Los Angeles Times article, headlined "In sentencing Del Mar father, key judge in admissions scandal offers insight into future decisions," provides an interesting behind-the-scenes looks at one of the judges now at the center of upcoming sentencing in the Varsity Blues case. And toward the end of the piece there is an interesting discussion of purposed efforts to "judge shop." Here are excerpts:

It was a sentencing hearing for Toby Macfarlane, a Del Mar insurance executive who will spend six months in prison for conspiring to have his children admitted to USC as bogus athletic recruits. But on Wednesday, all eyes were on U.S. District Judge Nathaniel M. Gorton, who is also overseeing the cases of 15 other parents who’ve maintained their innocence in an investigation of fraud, graft and deceit in the college admissions process.

Lori Loughlin’s legal fate will be decided in Gorton’s courtroom. So, too, will those of many other high-profile names embroiled in the scandal, among them Loughlin’s husband, fashion designer Mossimo Giannulli, and Bill McGlashan, a San Francisco Bay Area financier.

Six attorneys for other parents charged in the scandal filled a bench in Gorton’s third-floor courtroom, taking notes and trying to gain insight into how the 81-year-old jurist views the allegations of fraud and bribery the government has brought against clients of William “Rick” Singer, the Newport Beach consultant who oversaw a scheme to defraud some of the country’s most elite universities with rigged entrance exams, fake athletic credentials and bribes.

They got their answer. In Gorton’s first sentencing in the case, he delivered a withering dressing-down and a penalty to match. Macfarlane’s conduct — paying Singer $450,000 to slip his son and daughter into USC as phony athletes — was “devastating,” Gorton said. Macfarlane’s crimes may have been possible because of his wealth, Gorton said, but his actions were no different than those of “a common thief.”

Gorton doubled the sentencing range recommended by the court’s probation department, and committed Macfarlane to prison for six months — the longest sentence handed down in a scandal that erupted in March....

While he didn’t agree with the prosecution’s argument that the high-dollar amount of Macfarlane’s payment should lengthen his sentence, Gorton said Macfarlane’s crimes were nonetheless “serious and caused real harm,” deserving of a harsher sentence than the range recommended by the probation department....

In a sign that defense attorneys see Gorton as handing down harsher sentences than his peers at the courthouse, lawyers for 17 parents charged in the scandal wrote an unusual letter in April to Patti B. Saris, the chief judge for the district of Massachusetts, protesting the government’s intent to add their clients to an indictment that had already been assigned to Gorton.

Calling it “a clear form of judge shopping,” the attorneys said prosecutors so wanted to try their cases before Gorton that they had circumvented the process that assigns cases to judges at random. They qualified their complaint by saying, “To be sure, we deeply respect Judge Gorton.”

But Andrew Lelling, the U.S. attorney for Massachusetts, said in a letter of his own that what those attorneys “fail to say — but of course mean — is that they want a different judge because they perceive Judge Gorton as imposing longer sentences in criminal cases than other judges in this district.” Such a gripe, Lelling said, was a “hail Mary by people who know better.” The parents whose attorneys signed the letter were not, in the end, reassigned to a different judge.

Gorton will sentence four parents early next year who reversed their not-guilty pleas last month: Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a philanthropist whose family created the Hot Pocket; Manuel Henriquez, a Bay Area financier, and Henriquez’s wife, Elizabeth. The four changed their pleas after coming under pressure from prosecutors, who warned they could be charged with an added felony count of bribery if they didn’t plead.

U.S. District Judge Indira Talwani, who determined punishments for 11 of the 12 parents sentenced before Macfarlane, handed down sentences ranging from no time at all for Peter Sartorio, a Menlo Park, Calif., frozen foods entrepreneur, to five months in prison for Agustin Huneeus, a Napa, Calif., vintner.

A third judge, Douglas P. Woodlock, sentenced Jeffrey Bizzack, a Solana Beach entrepreneur and the longtime business partner of surfer Kelly Slater, to two months in prison.

November 18, 2019 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Friday, November 15, 2019

You be the federal judge: what sentence for Roger Stone after his conviction on all seven counts including obstruction, witness tampering and making false statements to Congress?

The question in the title of this is prompted by this criminal justice news emerging from a federal courthouse in DC today: "Roger Stone, an ally of President Donald Trump, was found guilty Friday of lying to Congress and obstructing an investigation into Russia to protect Trump and his presidential campaign."  Here is some more about the case and convictions:

The jury's verdict came after about eight hours of deliberation.  Stone, a fixture in GOP politics, has worked on campaigns stretching back to Richard Nixon's.  Stone is the latest Trump ally to be found guilty in cases sprouting from a special counsel's investigation into Russia's interference in the 2016 election.

The verdict, reached by a jury of nine women and three men, comes amid an impeachment inquiry into allegations that Trump sought to pressure Ukraine into investigating a political rival....  Trump took to Twitter shortly after the verdict was announced. He decried a "double standard" and said law enforcement officials lied, including Robert Mueller, the special counsel who headed the Russia investigation.

Stone's trial ends after a week marked with Nixon quotes, references to the Mafia movie "The Godfather" and a colorful witness who offered to do a Bernie Sanders impression before an unamused federal judge.  The proceedings attracted the attendance of controversial figures, including alt-right firebrands Milo Yiannopoulos and Jacob Wohl.

Michael Caputo, a former Trump campaign adviser who attended the trial, said he was escorted out of the courtroom by a federal marshal for turning his back on the jurors as they walked out.  "Normal Americans don’t stand a chance with an Obama judge and a Washington jury," he tweeted.

U.S. District Judge Amy Berman Jackson allowed Stone to go home as he awaits his sentencing, scheduled for Feb. 6.  A gag order preventing him from talking about the case remains in effect. He and his attorneys did not comment as they left the courthouse....

The proceedings revealed information about the Trump campaign's efforts to seek advance knowledge of emails stolen from the Democratic National Committee, which hurt Democratic presidential candidate Hillary Clinton when Trump was trailing in the polls.  Testimony indicated these efforts involved the candidate himself.

Stone, 67, stood trial on accusations that he repeatedly lied to Congress about his back-channel efforts to push for the release of those emails. He was accused of urging a possible congressional witness to either lie or scuttle his testimony.

"Roger Stone lied … because the truth looked bad for the Trump campaign and the truth looked bad for Donald Trump," Assistant U.S. Attorney Aaron Zelinsky told jurors.

Defense attorneys urged jurors to focus on Stone's state of mind, arguing he did not willfully mislead Congress.  The claim that Stone lied to protect the Trump campaign was "absolutely false," Bruce Rogow told jurors.  "It makes no sense," Rogow said, adding that the campaign was long over and Trump was already president when Stone testified before Congress in 2017. "Why would Stone lie, why would he make stuff up? ... There is no purpose, there is no reason, there is no motive."

Stone was found guilty of seven charges: one count of obstruction of an official proceeding, five counts of false statements and one count of witness tampering. The maximum penalty for all counts totals 50 years in prison, though first-time offenders generally receive significantly lower sentences.

Jurors heard from five government witnesses and saw dozens of emails and text messages that prosecutors said proved Stone lied.  His defense attorneys did not call any witnesses, and Stone, known for his flamboyance and combativeness, did not testify.  The charges stemmed from Stone's interactions with the Trump campaign in the summer of 2016, around the time that WikiLeaks, an anti-secrecy group, began publishing troves of damaging emails about the Democratic National Committee and Clinton.

Prosecutors said Stone lied to the House Intelligence Committee about his efforts to push for the release of those emails.  They said he lied about the identity of the person who tipped him off about WikiLeaks' plans — his so-called intermediary.  They said he falsely denied talking to the Trump campaign about what he learned and falsely told Congress he did not have text messages and emails in which he talked about WikiLeaks.

Prosecutors said Stone sought to silence a witness who could expose these lies by using threatening references from "The Godfather" movie.  Stone urged the witness in multiple emails to follow the steps of Frank Pentangeli, a character in "The Godfather II" who lied to Congress to avoid incriminating Mafia boss Michael Corleone.

In some settings, I would be inclined to predict that an elderly nonviolent first(?) offender is quite unlikely to get a lengthy prison term or even any prison time at all.  But these days and in these kinds of high-profile case, I am never quite sure what to expect or predict.

So, dear readers, what sentence do you think you would be inclined to impose?

November 15, 2019 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (5)

New Jersey commission releases big report recommending numerous big sentencing reforms

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Create a new mitigating sentencing factor for youth.

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

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

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

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

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

Wednesday, November 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related Varsity Blues posts:

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

Attorney General Barr announces "Project Guardian" as part of plan to reduce gun violence

As reported in this Hill piece, the "Department of Justice (DOJ) on Wednesday unveiled a program that aims to reduce gun violence including through the creation of guidelines to prosecute those who make false statements while trying to get a gun." Here is more:

The five-point plan includes coordinated prosecution, enforcing the background check system, improved information sharing, a coordinated response for mental health denials, and crime gun intelligence coordination, according to a DOJ statement.

The department seeks to coordinate prosecution under the "Project Guardian" program by considering federal prosecution for those who were arrested for possessing a firearm, are believed to have used a firearm while committing violence or drug trafficking, or who is suspected of actively committing violent crimes in connection with a criminal organization.

To enforce background checks, attorneys general, in connection with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will create or renew guidelines for prosecuting those who make false statements while trying to get a firearm. Those who have been convicted of violent felonies and domestic violence misdemeanors, among others, will be given special emphasis....

Attorney General William Barr said in a statement that the plan shows the DOJ's commitment to reducing gun violence. "Project Guardian will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally,” he said.

He also said during a press conference in Memphis, Tenn., that the program would be applied with exceptional "vigor" in areas with high levels of gun violence. "We're going to apply it with special vigor where gun violence is the highest, in places like Memphis," he said....

The attorney general said Wednesday that the administration came up with a series of related legislative proposals, but added they could not move forward due to the probe into the president's dealings with Ukraine. “Unfortunately, our discussions on the legislative aspects of this have been sidetracked because of the impeachment process on the Hill and so we are going forward with all of the operational steps,” Barr said.

“We certainly are always willing to pursue legislative measures that will enhance the fight against violent crime but right now it does not appear to things in Washington are amenable to those kinds of negotiations and compromises,” he added.

Gun violence prevention group March for Our Lives, which was founded after a mass shooting at a school in Parkland, Fla., criticized the program as a "racialized" tough-on-crime plan. "We’ve seen racialized ‘tough on crime’ plans before. It doesn’t work," the group tweeted. "We ought to be tough on injustice, economic oppression and inequality. Our country has a gun violence problem. It’s sources vary, but the common factor is easy access to guns."

I cannot help but wonder if, among the shelved legislative proposals, was some follow up on the talk from a few months ago of draft legislation to expedite the death penalty as part of package response to mass shootings. Even without legislative proposals, the announced "Project Guardian" initiative (set forth in this press release with this linked DOJ guidance memo) provides plenty to wonder about in terms of coming prosecutions and sentencings in the federal system.

As noted in this post, just this past Friday Deputy Attorney General Jeffrey Rosen highlighted in a speech that the current Justice Department has "increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration."  I presume that this uptick in firearm prosecutions will continue and perhaps even accelerate as a result of "Project Guardian."  I would welcome comments from anyone working "on the ground" in the federal criminal justice system about whether and how they think  "Project Guardian" could prove consequential.

UPDATE: The Justice Department has released the text of Attorney General William Barr's remarks in Memphis at the launch of Project Guardian. Here is a snippet:

What we are trying to do is take those Triggerlock principles that were successful in the past and revamp this program, resuscitate it, and double down on it nationwide.

This is a national program.  It will be in every district.  The idea is to use our existing gun laws to incapacitate the most dangerous and violent offenders.  As most of you know, with Project Safe Neighborhoods, which is one of the flagship programs of the Department of Justice, we do go after the armed felons.  But that program is regionally based; we go after particular areas.

Project Guardian is a national initiative to comprehensively attack gun violence through the aggressive enforcement of existing gun laws.

This will be implemented nationwide in every federal district.  We are going to apply pressure with vigor where gun violence is the highest in places like Memphis. Local agencies will be involved, but ATF will be leading this effort.  It will involve all federal law enforcement agencies working closely with our state and local colleagues.

November 13, 2019 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, November 10, 2019

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

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

Research Summary

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

Policy Implications

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

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

Thursday, November 07, 2019

"Taking a second look at life imprisonment"

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

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

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

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

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

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

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

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

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

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

Lots of capital headlines from the Lone Star State

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

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

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

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

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

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

 

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

Tuesday, November 05, 2019

"Is the ‘War on Drugs’ Over? Arrest Statistics Say No"

The title of this post is the title of this new New York Times Upshot piece by Susan Stellin. Here are excerpts:

Despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year.

According to estimated crime statistics released by the F.B.I. in September, there were 1,654,282 arrests for drugs in 2018, a number that has increased every year since 2015, after declining over the previous decade. Meanwhile, arrests for violent crime and property crime have continued to trend downward.

Drugs have been the top reason people have been arrested in the United States for at least the past 10 years, and marijuana has been the top drug involved in those arrests. The percentage of drug arrests that have been for possession (instead of for sale or manufacturing charges) has also risen, to 86 percent last year from around 67 percent in 1989. And the majority of drug arrests have involved small quantities.

“We’ve gotten so used to the idea that this is normal to arrest so many people for tiny amounts of drugs, but it’s not normal,” said Joseph E. Kennedy, a professor at the University of North Carolina School of Law who was an author of a paper titled Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests.

Although many arrests don’t result in conviction — some are dismissed and some result in pleas to a lesser offense — any drug conviction can harm employment, housing and educational prospects. And this continues to disproportionately affect African-Americans and Hispanics, even as many conservatives have joined liberals in saying that racial disparities in the criminal justice system need to be addressed....

It’s not clear why drug arrests are rising after a downturn in those arrests from 2006 to 2015. It may reflect in part a tougher enforcement approach begun under Jeff Sessions by the current administration, even with respect to marijuana. Even in states where marijuana is legal, people can still be arrested if they violate state laws like limits on the amount allowed for personal use. And increasing use nationwide — perhaps with an assumption of more leniency — may put more people at risk of arrest. According to the 2018 National Survey on Drug Use and Health, 43.5 million people 12 and older used marijuana in the past year, a number that has risen since 2011.

Public opinion has shifted decisively in favor of marijuana legalization. But Chuck Wexler, executive director of the Police Executive Research Forum, pointed out that 39 states haven’t passed laws making recreational marijuana legal, and that police practices and attitudes toward drugs vary among law enforcement agencies across the nation. “Some departments still see arrest as a measure of productivity, even though many of us see that as outdated,” he said.

Mr. Wexler says the overdose epidemic has contributed to how police departments respond to drugs, particularly in communities that lack diversion programs like the one in Seattle. “Today you have more recognition that you need to get people into treatment, but treatment is expensive and resources aren’t equal around the country,” he said, adding that “in many parts of the U.S., arrest is viewed as the only alternative that they have.”...

Better data collection and reporting about drug arrests would help inform policy as attitudes toward the drug war shift, particularly with respect to marijuana. “Anyone who’s spending money and law enforcement resources on this needs to be keeping track of this data,” said Mr. Kennedy, the U.N.C. law professor. “We have a right to know who we are arresting.”

November 5, 2019 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (1)

Wednesday, October 23, 2019

Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal

This lengthy USA Today article provides a kind of mid-season review now that 19 parents out of 35 charged have pleaded guilty in "Operation Varsity Blues" college admissions scandal. The piece, which I recommend in full, is headlined "Parents cry desperate times in college admissions scandal.  A judge opts for prison anyway."  Here are excerpts:

One couple, Gregory and Marcia Abbott, told the judge they paid $125,000 to have someone fix their daughter's college entrance exams because she was suffering from chronic Lyme disease and needed a boost.

Attorneys for a father, Robert Flaxman, said he was desperate to help a troubled daughter remain in recovery — so he paid to cheat in hopes of getting her into a college where she would be safe.

Lawyers for another parent, Marjorie Klapper, said she was trying to help her epileptic son who'd suffered a brutal physical assault feel like a "regular" student.

The wealthy parents are among 10 sentenced in the last two months in the nation's college admissions scandal. Each insisted they didn't cheat for the status symbol of their child getting into an elite college or university. Instead they were driven by a feeling people endure regardless of economic class — desperation. They were families in crisis, the parents said, and the scheme's mastermind, the manipulative college consultant Rick Singer, found them at their most vulnerable and seized upon their weakness.

But their stories, each deeply personal with some details sealed from public court documents, have done little to sway the sentences handed down by U.S. District Judge Indira Talwani. Attorneys for the Abbotts, Flaxman and Klapper each asked for no incarceration but got prison anyway. Only one of the 10 sentenced parents has avoided prison altogether.

“Just because you’re a good person in tough circumstances doesn’t mean you can disregard what you know is right," Talwani said last week to Flaxman, a real estate developer from Laguna Beach, California, who specializes in luxury resorts. “Even good people who are doing things for people they love can’t be breaking the law."

Flaxman, who sobbed in court as he apologized to students who "work hard and don’t cheat no matter what,” received one month in prison for paying $75,000 to Singer to have someone change answers on his daughter's ACT exam to improve her score.

The ongoing round of parent sentencing continues today with Jane Buckingham, of Los Angeles, the founder of a marketing firm and author of a self-help book series called, "The Modern Girl's Guide to Life." She's admitted to paying Singer $50,000 to have someone take the ACT exam for her son.

Two more parents will be sentenced in the coming weeks by other Boston federal judges. Four additional parents pleaded guilty in court Monday, bringing the total to 19 parents out of 35 charged who have pleaded guilty in the case. The latest four won't be sentenced until 2020.

Parents sentenced to date pleaded guilty to conspiracy to commit fraud charges. Those citing personal crises tend to have paid into the test-cheating plot and are not part of the group who paid Singer significantly more to have their children tagged as college recruits to facilitate their admissions. Talwani, during a hearing last week, said a level of "elitism" was at play with the latter.

Daniel Medwed, professor of law and criminal justice at Northeastern University School of Law, said a fallback defense strategy in any case is to develop "mitigation evidence" — often hardships — to demonstrate extenuating circumstances.  "With clients from impoverished or challenging backgrounds, the argument is to often cite those backgrounds — that this person never had a chance, they grew up without a roof," Medwed said.  "But when your defendants are white privileged folks you can't make a classic hardship argument.  So you have to come up with a different hardship."  Some of their arguments might not resonate with judge, he said, because it's difficult to "connect the dots between the hardships and the behavior."

The theme of this article seems to be that the defendants' various tales of woe are having little impact, that these deeply personal stories "have done little to sway the sentences handed down by U.S. District Judge Indira Talwani."  But, critically, federal prosecutors have generally advocated for longer prison terms for nearly all defendants than have been imposed by Judge Talwani, and it is generally unusual for any federal prison terms to be measured in weeks rather than in months and years.  So I am inclined to believe these arguments are resonating with the sentencing judge, but that she is still eager to impose (minimal) terms of imprisonment to send a message about misbehavior and equal justice.

Prior related Varsity Blues posts:

October 23, 2019 in Booker in district courts, Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Saturday, October 19, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (17)

Tuesday, October 15, 2019

Rounding up some previews of SCOTUS consideration of DC sniper Lee Malvo's juve LWOP sentence

Tomorrow afternoon, the US Supreme Court will hear oral argument in Mathena v. Malvo, a case that calls upon the Justice to continue struggling with the application of the Eighth Amendment limits on LWOP sentences that was set out in Miller v. Alabama and given retroactive effect in Montgomery v. LouisianaThis SCOTUSblog page has links to all the briefing in this case and sets out this question presented as framed by the state of Virginia:

Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

The intricacies of this question presented highlights that the Justice could approach the Malvo case as a small technical matter only about the proper application of prior settled decisions.  But because the crimes of Lee Malvo were horrific and the rulings in Miller and Montgomery contentious, there are advocates who wonder and fear that certain Justices may be eager to use this case to cut back on the Court's recent Eighth Amendment jurisprudence.

I have seen a number of notable previews and commentary concerning the Malvo case, and here is a sampling:

October 15, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

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, "Nation’s Criminal Defense Bar Lauds Newly Introduced 'Prohibiting Punishment of Acquitted Conduct Act of 2019'"

September 26, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

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)