Monday, May 04, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Monday, April 20, 2020

US Sentencing Commission continue to publish helpful data about the pre-COVID federal sentencing world

I keep waiting, impatiently, for the US Sentencing Commission to produce some data or information about federal sentencing realities in our modern COVID world.  I would love to see some data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting. 

That said, I understand the challenges for the USSC in trying to produce accurate real-time data in even the best of times, and so I will just keep praising the USSC for what they are producing even while I keep hoping for COVID-era data.  Specifically, the USSC merits praise for continuing to produce new reports and data collections and Quick Facts based on its recently completed 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.  Specifically, federal sentencing fans will want to check out these newer item from the USSC website:

OVERVIEW OF FEDERAL CRIMINAL CASES (Published April 16, 2020)  This publication provides a brief, easy-to-use reference on the types of criminal cases handled by federal courts in fiscal year 2019 and the punishments imposed on offenders convicted in those cases.

2019 GEOGRAPHIC SENTENCING DATA (Published April 17, 2020)  These data reports compare fiscal year 2019 federal sentencing statistics for each judicial district, judicial circuit, and state to the nation as a whole.

QUICK FACTS

April 20, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

US Senator Kennedy writes to AG Barr to urge him to "deny any request for early release" to certain notable fraudsters

As reported in this Hill piece, "Sen. John Kennedy (R-La.) called for Ponzi scheme architects who targeted the elderly, such as Bernie Madoff or Robert Allen Stanford, to remain in jail as some prisoners are being released because of coronavirus fears." Here is more:

In a letter to Attorney General William Barr, Kennedy requested the Federal Bureau of Prisons consider the “financial, emotional and physical devastation” prisoners have caused before permitting their early release. The attorney general had instructed the bureau to consider releasing nonviolent criminals who are at a higher risk of contracting the virus because of age or pre-existing medical conditions. “Releasing either of these individuals, or anyone similarly situated, would be an affront to those affected by their evil schemes, and a complete failure in the administration of justice,” Kennedy said in his letter.

Allen Stanford was convicted in 2012 of 13 felony counts and sentenced to 110 years for running a scheme that impacted 18,000 people. Kennedy wrote that he expects the 70-year-old to apply for early release. Madoff, 81, who ran an even larger investment-fraud scheme than Allen Stanford, has pre-existing health issues and has already requested early release.

“Our efforts should be focused on protecting those who protected us; our parents, grandparents, and military veterans who led crime-free lives,” Kennedy added. “Criminals such as Stanford and Madoff who preyed on the elderly should be the last ones to benefit from the change in circumstances COVID-19 has caused.”

The Louisiana senator also requested the Federal Bureau of Prisons publish information about inmates who are released, including their name, last known address, the prison they were released from, their age and their offense. He also called on state attorneys general to publish the same information.

The two-page letter from Senator Kennedy to AG Barr is available at this link. I find it quite interesting that (a) no other Senators signed on this this letter (though I do not know if others were asked, and (b) that Senator Kennedy decided to focus on this letter on big-time fraudsters like Madoff and Stanford without making mention of any other types of offenders like terrorists or murderers.

April 20, 2020 in Impact of the coronavirus on criminal justice, Offense Characteristics, Prisons and prisoners, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

In lengthy split opinion (with interesting splits), Supreme Court holds Sixth Amendment applies to states to require unanimous verdict to convict of serious offense

The Supreme Court this morning handed down a lengthy (surprisingly?) split decision in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here). At issue in Ramos was a set of hlaf-century old SCOTUS precendents in which the Court had held that the Sixth Amendment right to a jury trial, as incorporated against the states, did not require states to adopt a unanimity requirement even for serious cases. Those precedents went up in smoke today, but the break down of votes shows that not all of the Justices were eager to blaze a Sixth Amendment new path:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

I am going to need some time (and perhaps a number of posts) to process all that appears here, but for now I can spotlight Justice Gorsuch's notable closing paragraph:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life?  Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.  No one before us suggests that the error was harmless.  Louisiana does not claim precedent commands an affirmance.  In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.  But where is the justice in that?  Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory.  But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.  The judgment of the Court of Appeals is Reversed.

April 20, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, April 13, 2020

Highlighting data showing why it is safe to consider all persons for release when prisons are so dangerous

Building on their recently published recidivism research, J.J. Prescott, Benjamin Pyle and Sonja Starr have this notable new Slate piece headlined "It’s Time to Start Releasing Some Prisoners With Violent Records."  I recommend the piece in full, and here are excerpts:

Prisons and jails are fast becoming an epicenter of the COVID-19 pandemic . Last week, for instance, the New York Times reported that Cook County jail was “now the nation’s largest-known source of coronavirus infections.”  After far too much lost time, some governors and criminal justice officials are finally trying to mitigate the damage by releasing inmates or transferring them to home confinement.

To succeed, these steps must extend to prisoners with violent records.  This should be obvious based on sheer numbers.  People with violent convictions make up a majority of the total state prison population.  Because sentences for violent crimes are longer, they make up an even larger percentage of the older detainees most vulnerable to COVID-19: about two out of every three prisoners over age 55.

So far, this reality is being ignored.  Efforts to move people out of prisons and jails have mainly focused on the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like. Almost all these measures have excluded people convicted of violent crimes.  Many prepandemic criminal justice reforms have also focused on nonviolent offenders only, so we shouldn’t be surprised.  For many, people with violent convictions seem dangerous, and the idea of granting them any kind of relief is simply anathema.

But how dangerous is it to release prisoners with violent records?  We recently carried out an empirical study using post-release crime data on hundreds of thousands of such prisoners.  We found that it is much less dangerous than you probably think.  And during this pandemic, we can add, it seems doubtless much less dangerous than keeping them behind bars.

Our study found that among those released after serving a sentence for a violent crime, about one of every 10 releasees was sent back to prison for any new crime within the next three years. Only one of every 20 had another violent crime in three years.  In fact, re-offense rates have been consistently shown to be lower for people released after serving sentences for violent crimes than those released for nonviolent crimes.

Crime rates are even lower if you look at older prisoners — the ones most seriously threatened by COVID-19.  We looked at more than 7,000 individuals over age 55 who had served at least five years in state prisons for a violent offense.  Fewer than 1 percent of such individuals were re-incarcerated for any new crime in the three years after release, and fewer than 0.5 percent for another violent crime.

Our study was bigger and more recent than most, but our findings are consistent with the patterns we found in a comprehensive review of the literature.  Moreover, all those low re-offense rates were for normal releases from prison into society.  But “releases” now need not simply mean flinging open the prison gates indiscriminately. It could mean temporary transfers to home confinement for the duration of the emergency.  Protective measures like electronic monitors are also available....

Of course, at many prisons there could be some individuals who really are so dangerous that they cannot be safely released, even to home confinement.  But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence.  It certainly shouldn’t be assumed to be true of all who have violent convictions.  And once as many people as possible have been removed from facilities, it will be easier to practice social distancing among those who remain.

Are crime rates among those released likely to be zero?  No — but they should be close to it.  The stakes of doing nothing, though, have never been higher.  Categorically refusing to remove violent offenders from these virus hotbeds does not protect public safety. It endangers it....  COVID behind bars threatens everyone outside too.  Staff — and some detainees — come and go daily.  Some will bring COVID in with them, and after it has spread, much larger numbers will take it out.  Plus, sick prisoners will have to be moved to local hospitals, competing for scarce resources.

Prisons and jails are like concerts, conferences, and cruise ships: places where crowds in confined spaces can spread the virus to many, many people fast.  But unlike these other sites, they won’t be shut down.  So COVID outbreaks behind bars threaten our entire society’s ability to control the pandemic and return to normal life....

The COVID-19 situation in prisons is a moral test that, so far, our society is failing.  Even when our own safety is at stake, we make knee-jerk assumptions about people who once committed a violent crime: that they cannot ever reform.  These assumptions are not borne out by data.  And right now, they are blinding us to what is needed to protect all of us.

The new empirical study referenced in this piece is titled "Understanding Violent-Crime Recidivism" and is available at this link via SSRN.  Here is the piece's abstract:

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration.  Serious efforts to shrink the large footprint of the prison system will need to recognize this fact.  This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic.  Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars.  Excluding them from protective measures will deeply undermine those measures’ effectiveness — and yet many governors and officials have hesitated due to fears of violent-crime recidivism.  In addition, the population imprisoned for violent offenses also exhibits sharper demographic disparities than the general prison population across both age and race.  Consequently, reforms that target those convicted only of nonviolent crimes will likely exacerbate existing inequalities in the criminal justice system.

In this Article, we start from the premise that better understanding individuals convicted of violent crimes is essential to overcoming resistance to the idea of releasing them earlier — and in particular, to address the fear that this population will almost certainly reoffend violently.  We review existing studies and offer new empirical analysis to inform these questions.  Although estimates vary, our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders.  At the same time, people released after previous homicide convictions may be more likely to commit new homicides than otherwise comparable releasees, although probably not by as much as most would expect.

April 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

Wednesday, April 08, 2020

"Reforms without Results: Why states should stop excluding violent offenses from criminal justice reforms"

The title of this post is the title of this notable new Prison Policy Initiative report authored by Alexi Jones.  Here is how the data-rich report gets started:

States are increasingly recognizing that our criminal justice system is overly punitive, and that we are incarcerating too many people for too long.  Every day, 2.3 million incarcerated people are subject to inhumane conditions, offered only limited opportunities for transformation, and are then saddled with lifelong collateral consequences.  Yet as states enact reforms that incrementally improve their criminal justice systems, they are categorically excluding the single largest group of incarcerated people: the nearly 1 million people locked up for violent offenses.

The staggering number of people incarcerated for violent offenses is not due to high rates of violent crime, but rather the lengthy sentences doled out to people convicted of violent crimes.  These lengthy sentences, relics of the “tough on crime” era, have not only fueled mass incarceration; they’ve proven an ineffective and inhumane response to violence in our communities and run counter to the demands of violent crime victims for investments in prevention rather than incarceration.

Moreover, cutting incarceration rates to anything near pre-1970s levels or international norms will be impossible without changing how we respond to violence because of the sheer number of people — over 40% of prison and jail populations combined — locked up for violent offenses.  States that are serious about reforming their criminal justice systems can no longer afford to ignore people serving time for violent offenses.

There are, unquestionably, some people in prison who have committed heinous crimes and who could pose a serious threat to public safety if released.  And by advocating for reducing the number of people incarcerated for violent offenses, we are not suggesting that violence should be taken any less seriously.  On the contrary, we suggest that states invest more heavily in violence prevention strategies that will make a more significant and long-term impact on reducing violence, which, again, reflects what most victims of violent crime want.  The current response to violence in the United States is largely reactive, and relies almost entirely on incarceration, which has inflicted enormous harms on individuals, families, and communities without yielding significant increases in public safety.

April 8, 2020 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, April 01, 2020

Wondering again about pace and number of federal sentencings after another Varsity Blues defendant gets imprisonment term

This AP article, headlined "Mother Sentenced to 7 Months in College Admissions Scam," reports on the high-profile federal sentencing that went forward in Boston by video conference yesterday.  Here are the basics:

A California woman was sentenced Tuesday to seven months in prison for paying bribes to rig her two daughters' college admissions exams and get one of them into Georgetown University as a fake tennis recruit.

In an unusual hearing held via videoconference due to the coronavirus pandemic, the judge rejected Elizabeth Henriquez's bid to avoid prison because of the public health crisis but is allowing her to remain free until at least June 30 in the hopes that the outbreak will have diminished by then. “I have every hope that the coronavirus crisis will abate in a matter of months and that Ms. Henriquez will be able to serve her sentence safely and rebuild her life,” U.S. District Judge Nathaniel Gorton said.

Henriquez and her husband were charged with paying $400,000 in bribes to get their oldest daughter into Georgetown as a bogus tennis recruit in 2016. They also paid bribes to have someone cheat on their daughters' college entrance exams, authorities said. In one instance, the purported proctor sat next to her daughter while she took a test and fed her the answers and then “gloated” with Henriquez and the teen about how they had cheated and gotten away with it, authorities said....

Her husband, Manuel Henriquez, is the founder and former CEO of Hercules Capital, a finance firm in Palo Alto, California. He is scheduled to be sentenced April 8.

Her lawyers had urged the judge to give her home confinement, citing a memo written by Attorney General William Barr who said some nonviolent inmates who are particularly at risk to the virus may be safer at home than behind bars....

Henriquez was sentenced via videoconference to keep people from gathering at the federal courthouse in Boston amid the pandemic. The judge talked to Henriquez and lawyers over video chat while news media and other members of the public listened on the phone. The Boston court and halls of justice across the country have delayed jury trials and moved to video and telephone hearings to keep the criminal justice system moving while people are hunkered in their homes.

Prosecutors had argued in court documents that she deserved more than two years behind bars. Gorton ordered Henriquez to begin serving her prison sentence on June 30 but said he would consider a request to push that back further if necessary.

As I mentioned here a few weeks ago, under normal circumstances 300 federal sentences are imposed every work day, 1500 federal sentences are imposed every work week, 6200 federal sentences are imposed every month in US courts nationwide.  Clearly, some number of federal sentencings are going forward, but I am so very eager to know how many.  I am hoping that before too long, the US Sentencing Commission or the Justice Department will try to provide some real-time data on the administration of federal criminal justice amidst the COVID crisis.

A few prior recent related posts:

April 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, March 10, 2020

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, March 05, 2020

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

March 5, 2020 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Will Oregonians vote to decriminalize all drug possession this November?

The question in the title of this post is prompted by this local news piece, headlined "Oregon Voters Could Decide This Year Whether To Decriminalize Drugs," about a ballot proposal that likely will be getting more and more attention in the months ahead.  Here are the basic details:

The proposed ballot measure, which has been financed by the New York-based Drug Policy Alliance, would make Oregon the first state to remove criminal penalties on possession of illegal drugs....

“By removing harsh criminal penalties, we want to bring people into the light,” said Anthony Johnson, a Portland political consultant who is a chief sponsor of the measure.  “We want people to be willing to talk to their friends and families and loved ones and get the treatment they need.”

The measure, now technically known as Initiative Petition 44, would reduce possession of illegal drugs — including heroin, methamphetamine and cocaine — to a non-criminal, $100 citation. And that citation could be waived if a person agrees to get a health assessment at a drug recovery center.  Drug trafficking and possession of large amounts of illegal drugs would continue to carry the same criminal penalties.

The proposed ballot measure also calls for providing a big increase in funding for drug treatment, which surveys suggest is more poorly funded in Oregon than in almost any state in the country. Most notably, the measure would divert most cannabis tax revenues away from schools and other services to provide at least $57 million a year for drug treatment. In addition, the measure calls for the state to take savings from reduced incarceration rates for drug crimes and put them into treatment programs.

Those efforts to boost treatment funding have been emphasized by measure petitioners. Several treatment advocates have endorsed the measure, including Richard Harris.  He founded Central City Concern in Portland and once headed the state’s office of Addictions and Mental Health Services. “The reality of it is that the effort to punish people because they have an addiction has always been a misplaced public policy,” Harris said.

But the initiative, which was first filed last August, has also raised concerns among many providers. Heather Jefferis is executive director for the Oregon Council for Behavioral Health, which represents many of the state’s major treatment providers. She said in a statement that, “We are not confident this proposal will address Oregon’s longstanding access crisis for Substance Use Disorder or Mental Health treatment services.”...

The decriminalization measure has met vociferous opposition from some law enforcement officials. Clackamas County District Attorney John Foote said he worries decriminalization would make it more socially acceptable to use dangerous drugs. “The trick is to not get people hooked in the first place,” he said. “If you get involved in heroin and methamphetamine, the road back is filled with failure.”

Oregon has already taken several steps toward reducing drug penalties. In 2017, the Legislature lowered several drug-possession charges from felonies to misdemeanors. And in many localities, prosecutors have increasingly focused on diverting drug offenders out of the criminal justice system and into treatment programs.

The Drug Policy Alliance, which helped fund Oregon’s 2104 cannabis legalization measure, has received major funding from billionaire investor George Soros. The group has so far provided virtually all the $850,000 donated to the measure campaign. Johnson said the campaign would be run by Oregonians and expects to attract many in-state donors.

The official website supporting Initiative Petition 44 (IP 44) is available at this link.  Here is how it describes the effort:

People suffering from addiction need help, not criminal punishments.  The Drug Addiction Treatment and Recovery Act, or IP 44, is a citizen initiative that Oregonians will vote on in November.  The idea is straightforward: instead of arresting and jailing people for drugs, we would begin using some existing marijuana tax money to pay for expanded addiction and recovery services, including supportive housing, to help people get their lives back on track.

This ballot measure doesn’t legalize any drugs.  Rather, it removes criminal penalties for small amounts of personal possession of drugs and directs people to drug treatment and recovery services.

March 5, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, March 03, 2020

"Going Back to Jail When You Haven’t Committed a Crime: Early Findings From a Multi-State Trial"

The title of this post is the title of this new report from the Institute for Justice Research and Development (IJRD) prepared by Carrie Pettus-Davis and Stephanie Kennedy. This report is part of a series of quarterly reports designed to provide real-time results of a multistate study on prisoner reentry currently being conducted in over 100 correctional facilities and 21 urban and rural counties in 7 states.  The full report itself is a reader-friendly 17 pages, and there is also this one-pager with key takeaways.  Here are excerpts from the one-pager:

Although the general public often thinks about recidivism as individuals leaving incarceration and committing new crimes, technical violations contribute to the strikingly high rates of recidivism reported for individuals released from prisons and jails across the United States....

• Research suggests that 45% of the more than 600,000 annual state prison admissions across the nation are due to probation or parole revocations.

• While probation or parole can be revoked for committing new crimes, 26% of new prison admissions are due solely to technical violations. Unpaid fines and fees also contribute to technical violations and may lead individuals back to incarceration.

• Our goal was to explore the circumstance of re-arrest among our study participants.  At this early point in the study, data are incomplete or unavailable.

• This report examines the reasons for re-arrest provided by study participants as these data were the most complete.  They describe a range of technical violations for expected events — missing check-ins with supervising officers and violating curfew — and unexpected events – being arrested, having one’s charges dropped, and returning to jail for coming into contact with law enforcement. Though not the focus of this report, other common technical violations were related to substance use, carrying guns, and reengagement in crime. We will have more complete data on these rates in the future.

• The 35 individuals highlighted in this report were re-arrested for non-drug related, non-criminal technical violations.

• We ask stakeholders to consider whether current policy and practices are meeting the stated purpose and goals of conditional release.  Are the non-criminal behaviors described in this report reason enough to send someone to jail?  Is it worth the financial costs and associated social costs?

March 3, 2020 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Split SCOTUS ruling concludes IRCA does not preempt state prosecution for identify theft for SSN fraud

The Supreme Court handed down a criminal law ruling this morning in Kansas v. Garcia, No. 17-834 (S. Ct. March 3, 2020) (available here), that may ultimately interest federalism fans more than sentencing fans. The majority opinion is authored by Justice Alito, and it starts this way:

Kansas law makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit.  Respondents — three aliens who are not authorized to work in this country — were convicted under these provisions for fraudulently using another person’s Social Security number on state and federal tax-withholding forms that they submitted when they obtained employment.  The Supreme Court of Kansas held that a provision of the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts the Kansas statutes at issue insofar as they provide a basis for these prosecutions.  We reject this reading of the provision in question, as well as respondents’ alternative arguments based on implied preemption. We therefore reverse.

Justice Thomas, joined by Justice Gorscuh, concurs in an opinion that starts this way:

I agree that Kansas’ prosecutions and convictions of respondents for identity theft and making false information are not pre-empted by §101(a)(1) of the Immigration Reform and Control Act of 1986, 8 U. S. C. §1324a.  I write separately to reiterate my view that we should explicitly abandon our “purposes and objectives” pre-emption jurisprudence.

Justice Breyer filed an opinion concurring in part and dissenting in part joined by Justices Ginsburg, Sotomayor and Kagan:

I agree with the majority that nothing in the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts Kansas’ criminal laws as they were applied in the prosecutions at issue here. But I do not agree with the majority’s conclusion about implied preemption.

March 3, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, March 01, 2020

"The Criminal History of Federal Economic Crime Offenders"

The title of this post is the title of this new report released late last week by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

For the first time, this report provides in-depth criminal history information about federal economic crime offenders, combining the most recently available data from two United States Sentencing Commission projects.

Key Findings
  • The application of guideline criminal history provisions differed among the different types of economic crime offenders.
  • The extent of prior convictions differed among the different types of economic crime offenders.
    • About half of all federal economic crime offenders had at least one prior conviction in their criminal history.
    • Prior convictions were most common among counterfeit and forgery (71.1%), identity theft (70.4%), credit card fraud (68.7%), and financial institution fraud (68.6%) offenders.
    • Prior convictions were least common among computer-related (29.6%) and government procurement (25.4%) fraud offenders.
  • Federal economic crime offenders did not “specialize” in economic crime.
    • Convictions for prior economic offenses were not the predominant types of prior convictions. 
    • Fourteen percent of federal economic crime offenders had convictions for prior economic offenses only, to the exclusion of other types of convictions. 
    • Convictions for prior “other” offenses, such as DUI and public order, were the predominant types of prior convictions.
  • The severity of criminal history differed for offenders in the specific types of economic crime.
    • Financial institution fraud, credit card fraud, identity theft, mail-related fraud, and counterfeit and forgery offenders had relatively serious criminal histories compared to other economic crime offenders.
    • Government procurement and computer-related fraud offenders had comparatively less serious criminal histories compared to other economic crime offenders.
  • Only about one-quarter of federal economic crime offenders with prior convictions were not assigned criminal history points under the guidelines.

March 1, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Wednesday, February 26, 2020

SCOTUS unanimously rejects effort to narrow ACCA-predicate drug crimes in Shular

Much of the never-ending Armed Career Criminal Act litigation concerns the reach of ACCA's "violent felony" definitions as predicate priors for applying the statute's extreme 15-year mandatory minimum term.  But the Supreme Court addressed unanimously today in Shular v. United States, No. 18–6662 (S. Ct. Feb. 26, 2020) (available here), the reach of the ACCA predicate provision defining "serious drug offense."  And while defendants have often prevailed on challenges to broad application of "violent felony," the unanimous opinion by Justice Ginsburg in Shular turns away a defense effort to limit what qualifies as a "serious drug felony."  Here is the full start to the Court's opinion:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence of imprisonment for certain defendants with prior convictions for a “serious drug offense.”  A state offense ranks as a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii).  This case concerns the methodology courts use to apply that definition.

While the parties agree that a court should look to the state offense’s elements, they disagree over what the court should measure those elements against.  In the Government’s view, the court should ask whether those elements involve the conduct identified in §924(e)(2)(A)(ii) — namely, “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”  Petitioner Eddie Lee Shular, however, contends that the terms employed in the statute identify not conduct, but offenses.  In his view, those terms are shorthand for the elements of the offenses as commonly understood.  According to Shular, the court must first identify the elements of the “generic” offense, then ask whether the elements of the state offense match those of the generic crime.

Under the approach he advances, Shular argues, his sentence is not subject to ACCA enhancement.  The generic offenses named in §924(e)(2)(A)(ii), as Shular understands them, include a mens rea element of knowledge that the substance is illicit.  He emphasizes that his prior convictions were for state offenses that do not make knowledge of the substance’s illegality an element of the offense; the state offenses, he therefore maintains, do not match the generic offenses in §924(e)(2)(A)(ii).

The question presented: Does §924(e)(2)(A)(ii)’s “serious drug offense” definition call for a comparison to a generic offense?  We hold it does not.  The “serious drug offense” definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.

Even for hard-core ACCA fans (and you know who you are), there does not seem to be all that much of great significance in Shular (beyond a reminder that rulings for prosecutors can still sometimes garner unanimity from this Court).  There is an intriguing coda to the Shular ruling in the form of a three-page concurrence by Justice Kavanaugh in order to "elaborate on why the rule of lenity does not apply here."  In his elaboration, Justice Kavanaugh seems mostly just to reiterate basic doctrinal statements about the rule of lenity from past SCOTUS cases, so I am not quite sure what the separate opinion was designed to achieve (beyond giving the Justice an excuse to cite his own Harvard Law Review article: "Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016)).

February 26, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Madoff Wants Leniency. My Dad Received None. Why should the Ponzi scheme king get out to die, when the judges imprisoned my father with just weeks to live?""

The title of this post is the full headline of this notable new Bloomberg Opinion commentary in which Ian Fisher reflects, in a personal way, on compassion and compassionate release.  I recommend the piece in full, and here are excerpts:

I cannot remember the name of the chaplain who called from the Butner correctional facility, perhaps the nation’s premier federal prison for sick white-collar prisoners. But he was a pro.  He talked slowly, in gentle circles about how my father had been very ill and how they did their best.  This verbal shuffling was all so I could figure out before the chaplain said the actual word that my father, Albert Ernest Fisher III, was dead. He was 78.

So it hit me with unexpected emotion, complicated now as a financial journalist, when I read that Bernie Madoff, 81, my father’s Butner prisonmate, is asking for compassionate release. He says he is dying.  I use “he says” as journalistic distancing and to signal that it may not be wise to believe everything that the engineer of the world’s biggest Ponzi scheme tells you....

After Madoff’s request, I’ve learned that the penal system is trending toward compassion — as well as a more hard-headed desire to unclog prisons and work toward fairness in drug sentencing.  The 2018 First Step Act, passed too late for my father, allows judges more flexibility to release federal prisoners. So when Bernard Ebbers, sent to prison for 25 years for $11 billion in accounting fraud, asked for compassionate release last year, it hardly raised a stir.  He was let out in December and died at home in Mississippi on Feb. 2, just around the time Madoff made his own request.

Still, when your own family life collides with larger forces embodied in First Step, the feelings are less abstract.  My dad was not in Madoff’s league, but there are parallels.  Both ran Ponzi schemes.  The crimes of each caused real damage, from life savings vaporized to student funds for room and board squandered in Bermuda and Neiman Marcus.  Neither was a violent threat to society, but the actions of each incurred a debt to it.  Those actions cost, in explicit ways....

My immediate reaction to Madoff’s request was a personal one: Why should he get out to die, when the judges imprisoned my father with just weeks to live? Madoff’s lawyers say he has maybe 18 months left in him. He’s been in prison nearly 11 years.

I don’t wish to be cruel. I wince seeing the terminally ill suffer in jail, my dad, Madoff or anyone else.  First Step seems like a reasonable attempt at reducing mass incarceration in the United States — case by case, on their merits, under specific guidelines.

But Madoff’s request has unexpectedly forced me to face something basic about being a citizen: Can you live with what you think is abstractly good even if is not good for you personally?  In my case, can I say it’s fine that Madoff may get to die freely when my father could not — even if I believe that people like him should be shown compassion?

Honestly, it’s not going down very well.  To me, Madoff is not a matter of public policy, brushing prison shoulders with my father: a better criminal, richer and more famous, who could glide free simply because times have changed.

Prior related posts:

February 26, 2020 in FIRST STEP Act and its implementation, Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Friday, February 21, 2020

Enjoy full day of "The Controlled Substances Act at 50 Years" via livestream

CSA at 50_socialBlogging will be light over the next few days as I am in the midst of helping to conduct this amazing conference which started last night at the Arizona State University Sandra Day O’Connor College of Law.  I have had the pleasure and honor of working with the amazing team at The Ohio State University's Drug Enforcement and Policy Center (@OSULawDEPC), along with the also amazing team at ASU's Academy for Justice (@Academy4Justice), to put together amazing and diverse array of panels and workshops on all sorts of topics relating to the past, present and future of the CSA's development, implementation and enforcement.

The basic agenda for the event can be found at this page, and last night  started with an amazing keynote by the amazing Keith Humphreys, Stanford University, Esther Ting Memorial Professor on "Federal Policy and the Dual Nature of Drugs," followed by an amazing response to keynote by Peter Reuter, University of Maryland, Professor of Public Policy and Criminology asking "Do Drug Problems have more influence on Drug Policy than vice versa?".

I am especially pleased and excited by this list of speakers who are participating, and today begins a series of terrific panels. and I can provide this link with its own links to the livestream for each of the panels. I think every part of the conference will be amazing, and I hope folks can make the time to tune in.

February 21, 2020 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Thursday, February 13, 2020

Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment

Thanks to an ACLU event, I just learned that Oklahoma criminal justice reform advocates are working toward bringing a fascinating (and potentially far-reaching) new reform proposal directly to the voters.  This local press piece from a few weeks ago explains the basics:

Criminal justice reform advocates want to amend the Oklahoma Constitution to prohibit sentence enhancements based on previous felonies for nonviolent offenders. The measure would also allow nonviolent offenders serving enhanced sentences to seek a modification in court.

“A former conviction for one or more felonies shall not be used to enhance the statutorily allowable range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony,” reads the proposed measure [which is available here].  I This measure would not apply to those who have been convicted of a violent felony as defined by Oklahoma Statutes. This includes assault, battery, murder, manslaughter, kidnapping, child abuse, rape and human trafficking.

Oklahomans for Sentencing Reform, a bipartisan coalition championing the measure, filed the petition in November and began collecting signatures [in December]. State Question 805 requires nearly 178,000 signatures by 5 p.m. March 26 to be put to a statewide vote in 2020.

“The reality is that Oklahoma has an incarceration crisis,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform (OCJR). “We have the second-highest incarceration rate per capita of any state in the United States, and we have the highest female incarceration rate in the nation. Unfortunately, we’ve held that distinction since 1991, and the disparity in the number of women we incarcerate continues to grow.”

According to a 2019 report by FWD.us, Oklahoma sends more people to prison than other states, especially for nonviolent crimes, and keeps them incarcerated for much longer. Eight in 10 women go to prison for nonviolent offenses. “Research has shown these long stays in prison have little or no effect on recidivism when people come home,” reads the report. “At the same time, these extra weeks, months and years place emotional and financial burdens on the families of those incarcerated.”

Proponents of the initiative say the state’s incarceration crisis is driven in large part by enhanced sentences, and they hope momentum from recent criminal justice reforms help the initiative succeed. “We’ve been working on responsible criminal justice reform for over a decade, and the good news is that support among voters continues to grow,” Steele said. “We have seen some tremendous momentum in recent years, and we are hoping to build on that momentum and deepen the conversation level of understanding and support statewide for a more effective approach to public safety.”

Gov. Kevin Stitt has publicly opposed the initiative, saying a constitutional amendment is the wrong way to go about criminal justice reform. Steele argues that a constitutional amendment would prevent lawmakers from trying to repeal the measure if approved by voters. He cited an attempt to repeal State Questions 780 and 781 only months after they were approved in November 2016....

District attorneys across the state have also publicly opposed the measure, saying it would negatively impact public safety. But proponents of the measure disagree because they don’t see many positives outcomes from the state’s high incarceration rates.

Some of the concerns of DAs are expressed in this local opinion piece authored by Jason Hicks, President of the Oklahoma District Attorneys Association, under the headline "Proposed state question could affect domestic violence sentencing."  Meanwhile, the  "Yes on 805" campaign has this website, but not a lot of details about 

I have no sense of whether proponents of this interesting initiative will be able to get it to voters, nor do I have any sense of whether Oklahoma voters might be supportive of this proposal.  But I think those troubled by mass incarceration, extreme sentencing terms and racially disparate sentencing practices are wise to focus criticism on the often out-sized impact of (even minor) criminal history at sentencing.  I do not know if this Oklahoma ballot initiative might be just the start of a whole new front for sentencing reform efforts, but I hope it can help generate a robust discussion of the many important issues that relate to the use of criminal history at sentencing.

February 13, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, February 11, 2020

DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"

As noted in this prior post, yesterday federal prosecutors filed this 26-page sentencing memorandum advocating for a within-guideline sentence of 7.3 to 9 years in prison for Roger Stone.  Prez Trump in the middle on the night tweeted out his displeasure with that advocacy, and today we saw filed this new 5-page supplemental and amended memorandum from federal prosecutors.  This new document is remarkable in many respects, and here are just a few excerpts that I suspect federal defendants may be keen to quote in other cases (in part because this new filing almost reads like a defense submission):

The prior filing submitted by the United States on February 10, 2020 (Gov. Sent. Memo. ECF No. 279) does not accurately reflect the Department of Justice’s position on what would be a reasonable sentence in this matter.  While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.

It is well established that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).  This axiom does not simply apply to the process of bringing charges or securing a conviction — it also “must necessarily extend” to the point where a prosecutor advocates for a particular sentence.  See United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir. 1978) (reviewing sentencing conduct of prosecutor). Applying that principle here, to the specific facts of this case, the government respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances....

Here, as set forth in the government’s initial submission, the defendant’s total offense level is arguably 29 and his criminal history category is I, which would result in an advisory Guidelines range of 87 to 108 months.  Notably, however, the Sentencing Guidelines enhancements in this case — while perhaps technically applicable — more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b)....  Accordingly, it would be reasonable for the Court to conclude that the Guidelines range as calculated is unduly high on the facts of this case.

After calculating the Guidelines, the Court next turns to the statutory sentencing factors.  Title 18 of the United States Code Section 3553(a) states that a sentencing court should “impose a sentence sufficient, but not greater than necessary” to achieve the statutory goals of sentencing.  In doing so, Section 3553(a) delineates several factors that the court must consider when imposing a sentence, “and the sentencing range . . . as set forth in the Guidelines” is but one of those factors....  Here, there are several facts and circumstances supporting the imposition of a sentence below 87 to 108 months’ imprisonment....

Finally, the Court also should consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence. As noted above, a sentence of 87 to 108 months more typically has been imposed for defendants who have higher criminal history categories or who obstructed justice as part of a violent criminal organization....

The defendant committed serious offenses and deserves a sentence of incarceration that is “sufficient, but not greater than necessary” to satisfy the factors set forth in Section 3553(a).  Based on the facts known to the government, a sentence of between 87 to 108 months’ imprisonment, however, could be considered excessive and unwarranted under the circumstances.

Interestingly, as reported via The Hill, a changed sentencing recommendation is not the end of the fallout here:

The four Department of Justice (DOJ) prosecutors who recommended Roger Stone be sentenced to seven to nine years in prison left the case Tuesday after top officials sought to reduce their sentencing request.

Prosecutors Michael Marando, Timothy J. Shea, Jonathan Kravis and Aaron Zelinsky all asked the judge in the case for permission to withdraw. Kravis left the DOJ entirely, announcing his resignation as an assistant U.S. attorney. The four were involved in providing the initial sentencing guidance for Stone. But in a rebuke to the career prosecutors, the DOJ on Tuesday told the judge in the case to apply "far less" to Stone's sentence....

The DOJ decision and the withdrawal of career prosecutors from the case stunned legal watchers and Washington and raised questions about potential political interference in the sentencing of a longtime Trump adviser. Reports of the DOJ reversal said top officials found the initial guidelines to be "excessive." Those reports also came after Trump blasted the guidelines on Twitter, saying that Stone was treated unfairly by prosecutors....

Speaking with reporters in the Oval Office, Trump said he didn't tell the Justice Department to amend its sentencing guidance but that he would have been within his rights to do so. “I'd be able to do it if I wanted. I have the absolute right to do it. I stay out of things,” Trump said.

"I didn't speak to them. I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous,” he continued. “I thought it was an insult to our country.”

Senate Minority Leader Charles Schumer (D-N.Y.) is calling on the DOJ's top watchdog to investigate the decision to suddenly recommend a lighter sentence for Stone, while the group Citizens for Responsibility and Ethics in Washington is sending the Justice Department a Freedom of Information Act request for records related to the case. "The DOJ Inspector General must open an investigation immediately. I will be sending a formal request to the IG shortly," Schumer tweeted.

Prior related post:

February 11, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (7)

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 07, 2020

Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal

As reported in this Los Angeles Times piece, "Douglas Hodge, once the leader of an international bond manager and now an admitted felon, was ordered Friday to spend nine months in federal prison for paying bribes totaling $850,000 to get four of his children into USC and Georgetown as fake athletic recruits."  Here is more about the latest sentencing in Operation Varsity Blues:

Hodge, 62, received the longest prison term of any of the 14 parents who have so far been sentenced for fraud and money laundering crimes they admittedly committed with William “Rick” Singer, a Newport Beach college admissions consultant who has acknowledged defrauding some of the country’s most selective universities for years with rigged exams, fake athletic credentials and bribes.  In addition to his prison term, U.S. District Judge Nathaniel M. Gorton ordered Hodge to pay a $750,000 fine, serve 500 hours of community service and remain on supervised release for two years.

“I know that I unfairly, and ultimately illegally, tipped the scales in favor of my children over others, over the hopes and dreams of other parents, who had the same aspirations for their children as I did for mine,” Hodge said in a statement. “To those children, and their parents, I can only express my deepest and sincerest regret.”

From the day he surrendered to authorities last March, Hodge, a resident of Laguna Beach, was among the highest-profile names in a scandal headlined with them. He rose to the head of Pimco, the bond management company based in Newport Beach, before retiring from the post of chief executive in 2016.

Prosecutors from the U.S. attorney’s office in Boston had asked Gorton to send Hodge to prison for two years. In a memo filed before his sentencing, they criticized Hodge as a hypocrite, appearing to the world the image of success and integrity while leading “a secret double life, using bribery and fraud to fuel a mirage of success and accomplishment.”

Hodge’s lawyers said the request for a two-year prison term reflected the Boston prosecutors’ “single-minded obsession” with obtaining undeservedly lengthy sentences in the high-profile case. Gorton handed down in November what was previously the longest sentence in the case, a six-month term, to Toby Macfarlane. The Del Mar title insurance executive is incarcerated in Tucson scheduled to be released in June, according to Bureau of Prison records.

Hodge pleaded guilty in October to conspiring to commit fraud and money laundering. Along with three other parents, he reversed his not-guilty plea after prosecutors warned of a new indictment carrying a bribery charge.

Eleven parents — a group that includes the actress Lori Loughlin and her husband, J. Mossimo Giannulli — balked at the threat, maintained their not-guilty pleas and were indicted on a bribery charge. Fifteen parents have pleaded not guilty; 21 have admitted their guilt or said they plan to do so...

Justin D. O’Connell, an assistant U.S. attorney in Boston, said Hodge did more than look away from Singer’s scheme. Hodge, he wrote in a memo, “engaged in the scheme more often, and over a longer period of time, than any of the defendants charged to date.” After his daughter was admitted to Georgetown, Hodge repeated the scam at the school for his oldest son and at USC for two more children, spending $850,000 in all. In arguing for a two-year sentence, O’Connell pointed to what he said was Hodge’s willingness to bring his children into his crimes.

He told his daughter to “stay under the radar,” and not tell a Georgetown interviewer that she had already been admitted through tennis, O’Connell wrote. Hodge vehemently disputed this. “The government simply has the facts wrong on this,” he said. His lawyers said he took “great steps” to hide from his children the scheme to transform them into elite athletes on paper, and that prosecutors have no evidence they were aware of, let alone complicit in, the fraud.

Prior related Varsity Blues posts:

February 7, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Texas completes execution of mass murderer of his own family

As reported in this news piece, "Dallas man was executed Thursday evening for a shooting in which he killed his wife, two children and two other relatives during a drug-fueled rage nearly 18 years ago."  Here is more context surrounding what was the third execution in the United States this year (and the second in Texas):

Prosecutors say Abel Ochoa was high on crack cocaine and looking for money to buy more drugs when he started shooting inside his home in August 2002. Ochoa, 47, was pronounced dead at 6:48 p.m., 23 minutes after receiving a lethal injection at the state penitentiary in Huntsville for the slayings of his wife, Cecilia, 32, and his 7-year-old daughter, Crystal. He also killed his 9-month-old daughter, Anahi; his father-in-law, 56-year-old Bartolo Alvizo; and his sister-in-law, 20-year-old Jacqueline Saleh, and seriously injured his sister-in-law Alma Alvizo....

Jonathan Duran, who watched Ochoa die, said he accepted Ochoa's apology. “I accepted the fact as a child, at 12 years old, when I buried my mother, my sisters, my aunt and my grandfather,” Duran said. “Nothing's going to bring them back. It's up to us to keep their memory alive, rebuild what we lost. I can't ever replace my mother or my sisters.

“After 17 years, me, my family, .. the whole tree. We can finally say we got closure, we got justice."...

The execution was carried out after the U.S. Supreme Court turned down a request by Ochoa's attorneys to halt it. They wanted a review of whether his rights were violated because he initially wasn’t allowed to film a prison interview with his legal team for his state clemency petition. A Texas appeals court this week turned down a different request for a stay on claims that there were problems with paperwork related to Ochoa's death warrant. The Texas Board of Pardons and Paroles also turned down a clemency petition.

Ochoa's attorneys said in court documents that his death sentence should be commuted to a life sentence because of “his deep and sincere remorse.” Ochoa’s trial attorneys had described him as a hard-working, law-abiding citizen whose life unraveled amid a 2½-year addiction to crack....

At trial, Ochoa’s attorneys argued that he shot his family in a cocaine-induced delirium and had brain damage from drug abuse. Ochoa testified that he didn’t remember shooting his family.

Howard Blackmon, one of the Dallas County prosecutors who tried the case, said he argued that Ochoa killed his family in frustration and anger. “It’s just a horrendous set of circumstances for a parent just to murder, gun down their own children,” said Blackmon, who is now a criminal defense lawyer in Dallas.

Alma Alvizo testified that Ochoa had become aggressive toward his wife after learning she had a son from a previous relationship. Alvizo said her sister told her Ochoa had pointed a gun at her three weeks before the killings.

February 7, 2020 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Sunday, February 02, 2020

"Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment"

The title of this post is the title of this new essay authored by Daniel Medwed now available via SSRN. Here is its abstract:

The racial dimensions of the death penalty are well-documented.  Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit — against black defendants in particular.  Research points to an even more alarming factor.  The race of the victim, not the defendant, steers cases in the direction of death.  Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks.  This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives Matter movement and showing how it relates to the broader, systemic devaluation of African-American lives.

February 2, 2020 in Death Penalty Reforms, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, January 30, 2020

Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail

6a00d83451574769e2022ad3762ba2200c-320wiIn this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail.  Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below).  I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:

On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.

It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.

In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash.  In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie.  Willie never lied about the phone or made any effort to conceal it.  And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.

For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison.  No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison.  If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it. 

When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.

It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.

Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining that “Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.”

Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.

Willie doesn’t feel lucky.  And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.

In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people.  For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.

That the Eighth Amendment requires proportionality is no longer up for debate.  Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled.  Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.

But the outcome in lower courts has been predictably chaotic.  These unanswered questions are not merely fodder for academic debate.  There are human beings languishing in prison because of this case law jumble. Willie is one of them.

In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence.  Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender.  Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”

But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist.  In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.

But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender.  But they didn’t.

Not surprisingly, lower courts have taken this unworked detail in different directions.  In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.”  That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.

I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court.  Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate.  If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today.  A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.

But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine.  The cost of that confusion is human lives like Willie’s.  And that cost is growing.

Download Nash v State - Motion for Rehearing (filed)

Prior related post:

January 30, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, January 29, 2020

Dispensary owner gets (within-guideline?!) federal prison term of 15+ years for marijuana sales that could be legal under most state laws

The headlined of this local article from Michigan, "Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says," does not fully capture all the notable elements of a federal sentencing for marijuana sales yesterday.  Here are the details via the press article:

The former owner of medical-marijuana dispensaries in several Michigan cities was sentenced Tuesday, Jan. 28, to nearly 16 years in federal prison.  Danny Trevino, 47, of Lansing, who had Hydroworld dispensaries in Grand Rapids, Flint, Jackson, Lansing and elsewhere, had avoided state criminal and civil penalties over the years but was convicted of multiple federal charges.

“States are changing marijuana laws across the country, certainly that’s true, but federal law has not changed,” U.S. District Judge Paul Maloney said.

Trevino sought the statutory minimum sentence of five years in prison. Maloney instead sentenced Trevino to 15 years, eight months in prison - at the low end of advisory sentencing guidelines, which ranged from 188 to 235 months.

The sentence upset several family members and pro-marijuana activists who attended the sentencing in Grand Rapids. “What you saw is a travesty,” Detroit resident Richard Clement said. His shirt read: “#GETNORML,” “#WARONDRUGS” and “CANNACURES.”

He said it was difficult to reconcile what he called a harsh sentence in a state where marijuana is legal. He and others think Trevino was targeted because he is Hispanic. “This was totally racist,” a woman said, leaving the courthouse. “None of the (other dispensaries) ever get raided.” She was with Trevino’s family but refused to give her name....

Trevino, who has operated dispensaries since 2010, was convicted in an August jury trial of 10 felony charges, including conspiracy to manufacture, distribute and possess marijuana and maintaining a drug-involved premises. He was not allowed to use the state’s medical-marijuana law as a defense to the federal charges.

Nonetheless, the government said, he acted outside of the boundaries of the state medical-marijuana law. Defense attorney Nicholas Bostic called that a “fallacy.” He said that Trevino was successful in challenging state complaints after he had been arrested and the subject of several search warrants. He was arrested in April 2014 in Grand Rapids for delivery or manufacture of marijuana and maintaining a drug house but charges were dropped a month later, court records showed.

He fought forfeitures of funds seized by police that were ultimately returned by state courts. Trevino’s businesses were raided 16 times between 2010 and 2016, the government said. He provided the state with store records and tax records that showed his businesses brought in nearly $3 million.

“He thought he was legal,” Bostic told the judge. He said his client, whose previous drug convictions prevented him from being a caregiver, oversaw the operation. He said that every single sale of medical marijuana at his businesses would have been legal under laws in 33 states and the District of Columbia that allow medical or recreational marijuana. Trevino earlier told MLive: "How could I not have been in compliance if I was acquitted and found not guilty. We were winning and they didn’t charge us, so we kept going.”

Assistant U.S. Attorney Daniel McGraw said Trevino knew he acted illegally under federal law. He called Trevino “defiant, unrepentant and undeterred from committing the current federal crimes.” After federal investigators used a search warrant at one of his locations in 2016, Trevino posted on Facebook: “I guess Hydroworld is illegal. Lol OK.”

McGraw said Trevino acted as though marijuana – legalized in 2018 for recreational use in Michigan – was always legal. Trevino was “told time and time again that it was illegal and your honor, he simply didn’t care. He didn’t care. He kept operating," the prosecutor said.

The judge said his concern was Trevino’s conduct under federal law. “I fully recognize that the landscape has changed in many states in this country,” Maloney said. “The fact is, marijuana is a Schedule 1 controlled substance.” He noted that Congress has eliminated the mandatory minimum prison sentence for crack cocaine but has not acted on marijuana.

He said Trevino “had to know he was on the radar screens of federal authorities.” The judge ordered Trevino to serve four years on supervised release once his prison term ends. He also fined Trevino $11,000.

Without seeing more materials from this case, I am adverse to making too many quick judgments about this outcome. But nearly 16 years for quasi-legal marijuana sales seems pretty severe absent a lot more aggravating facts.  This article suggests that the defendant here was a "problem child" under Michigan state law, and so I suppose I can understand why the feds went after him and why the judge decided he merited a significant sentence. But if the defendant possibly believed that he was complying with state law, it seems misguided to sentence him pursuant to federal sentencing guidelines that are based around the “heartland” of a fully illicit drug dealer.

January 29, 2020 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (3)

Monday, January 27, 2020

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

January 27, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

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 (1)

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 (6)

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)