Monday, November 28, 2022

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

November 28, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, November 27, 2022

Previewing SCOTUS arguments on reach of federal public-corruption laws

The Supreme Court starts a new round of oral arguments this Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States.  SCOTUSblog has these previews of the coming arguments:

"A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting."

"Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law"

In addition, here are a few media previews:

From The Buffalo News, "Supreme Court to hear Ciminelli, Percoco appeals – and decide shape of federal corruption laws"

From Reuters, "U.S. Supreme Court to weigh Cuomo-era New York corruption cases"

From the Wall Street Journal, "The Supreme Court Gets a Fraud Test: The Justices hear two major cases on prosecutorial overreach."

November 27, 2022 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 15, 2022

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

Prior related post:

November 15, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

Sunday, November 13, 2022

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

November 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (9)

Friday, November 11, 2022

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

November 11, 2022 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 08, 2022

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

November 8, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (3)

Monday, October 24, 2022

Michigan school shooter Ethan Crumbley pleads guilty to all counts with sentencing next year

As reported in this AP piece, a "teenager pleaded guilty Monday to terrorism and first-degree murder in a Michigan school shooting that killed four students and may be called to testify against his parents, who’ve been jailed on manslaughter charges for their alleged role in the tragedy."  Here is more with an emphasis on sentencing dynamics:

Ethan Crumbley, 16, pleaded guilty to all 24 charges, nearly a year after the attack at Oxford High School in southeastern Michigan.  In the gallery, some relatives of the victims wept as assistant prosecutor Marc Keast described the crimes.  “Yes,” Crumbley replied, looking down and nodding in affirmation, when asked if he “knowingly, willfully and deliberately” chose to shoot other students.

The prosecutor’s office said no deals were made ahead of Monday’s plea. A first-degree murder conviction typically brings an automatic life prison sentence in Michigan, but teenagers are entitled to a hearing where their lawyer can argue for a shorter term and an opportunity for parole.

“We are not aware of any other case, anywhere, in the country where a mass shooter has been convicted of terrorism on state charges,” Oakland County Prosecutor Karen McDonald said.

The teenager withdrew his intent to pursue an insanity defense, and repeatedly acknowledged under questioning by Judge Kwame Rowe that he understands the potential penalties.

His parents, James and Jennifer Crumbley, are jailed on charges of involuntary manslaughter, accused of making the gun accessible to their son and ignoring his need for mental health treatment. Ethan Crumbley’s lawyer, Paulette Michel Loftin, said it’s possible he could be called upon to testify against them   She said they’re under a no-contact order, and he has not spoken to his parents.  Parents have rarely been charged in school shootings, though the guns used commonly come from the home of a parent or close relative....

Sheriff Michael Bouchard told reporters Monday that Ethan Crumbley still had 18 rounds of ammunition when he was arrested. “It’s my belief he would have fired every one of those had he not been interrupted by deputies going immediately in,” said Bouchard who also called Ethan Crumbley “a twisted and evil person.” “I hope he gets life without parole,” the sheriff added. “He has permanently taken lives away from four lovely souls and he’s permanently affected many, many more.”

Prosecutors earlier this year disclosed that Ethan Crumbley had hallucinations about demons and was fascinated by guns and Nazi propaganda.  “Put simply, they created an environment in which their son’s violent tendencies flourished.  They were aware their son was troubled, and then they bought him a gun,” prosecutors said in a court filing....

In addition to the counts of first-degree murder and terrorism causing death, Ethan Crumbley admitted guilt to seven counts of assault with intent to murder and 12 counts of possessing a firearm in the commission of a felony.

The judge set Feb. 9 for the start of hearings to determine if he’ll be sentenced to life without parole or get a shorter sentence due to his age, and a chance at release. His lawyers will be able to argue a variety of mitigating circumstances, including family life and mental health.  Prosecutors didn’t signal in court if they will argue for a no-parole sentence.

October 24, 2022 in Offender Characteristics, Offense Characteristics | Permalink | Comments (3)

Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 20, 2022

Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"?

The question in the title of this post is prompted by this new Slate commentary by John Pfaff headlined "Biden’s Focus on Marijuana Is Part of the Problem." One should read the full lengthy piece to understand the full "hot take," but here are some excerpts (with my complaints to follow):

A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular.  It’s a narrative that shapes — or, better put, misshapes — policy.

Most Americans are deeply misinformed about why people are in prison.  A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then.  (Those held in state prisons make up 90 percent of the nation’s incarcerated population.)  This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.

We think we can decarcerate with easy choices.  We cannot.

Nationally, in 2019 almost 60 percent of all people in state prisons were convicted of violence; those convicted of just homicide or rape make up nearly 30 percent of the overall prison population....  If we released everyone held in state prisons convicted not just of marijuana crimes, nor just of drug offenses, but of all non-violent offenses combined, we would still have one of the world’s highest incarceration rates.  Unsurprisingly, this means that violent crimes are also at the heart of racial disparities in U.S. prison populations, as a recent study by the Council on Criminal Justice made clear.

Yet reforms continue to refuse to grapple with this reality.  A 2020 report by the Prison Policy Initiative found nearly 100 state reforms in recent years that had explicitly refused to extend the changes to those convicted of violence.  In some cases, the tradeoff between non-violent and violent crimes is explicit.  In 2016, Maryland’s Democratic legislature scaled back sanctions for non-violent crimes, but also increased punishment for violent offenses.  And just recently, California Gov. Gavin Newsom vetoed a bill to limit the use of solitary confinement, long viewed by behavioral scientists as torture, an indication of the lack of stomach for deeper reforms even among so-called progressive state leaders.

The inability to discuss crimes of violence remains clear in our current politics. Oz’s attacks on Fetterman on crime are now echoed in Wisconsin, where Republican Sen. Ron Johnson says Democratic challenger Mandela Barnes demonstrated “far greater sympathy for the criminal or criminals versus law enforcement or the victims.”  Anecdotal attacks about violent crime have already caused two different New York governors to roll back the state’s 2020 bail reform law, before it was even possible to assess its impact.  Even with new evidence suggesting reform did not contribute much if anything to rising crime in 2020, further rollbacks loom for 2023.  And Virginia recently amended a law that expanded the ability of people in prison to earn good time credits to expressly exclude those who were serving time for any crime of violence.

Meanwhile, as state prison populations fell nationwide by 15 percent from 2010 to 2019, Bureau of Justice Statistics data suggests that the number of people locked up for violence fell by just 1 percent; a separate analysis of the BJS data conducted by the Council on Criminal Justice estimated that the numbers confined for violence actually rose over that time, undermining the declines in drug and property cases.

Talking exclusively about drugs does little in the short-run and reinforces a narrative that appears to affirmatively undermine the sorts of difficult discussions we need to have about the ways we respond to violence.  There are things that Biden could have done, or at least done at the same time, that could have taken advantage of his bully pulpit.

He could have encouraged state and local governments to think about alternative ways to address not just crime, but serious violence.  Biden’s August 2022 Safer America Plan did include some funding for just this but that part of the plan was always secondary to the push to hire more police; it was even framed merely as a way to free up the police to focus more on violence....

He could have announced a push for a repeal of the PLRA or AEDPA, two Clinton era laws that continue to impose real costs on people held in prison or challenging potentially wrongful convictions.  Or, he could have pushed harder to amend the federal code to eliminate qualified immunity for police, or pushed state legislatures to pass such bills, about 35 of which have been proposed in the aftermath of George Floyd’s murder only to almost all be thwarted by police union lobbying.  Such an approach could help improve police-community relations, which in turn could help address the single biggest challenge we face in reducing violence: the general unwillingness of victims of violence to contact the police.

It’s true that these are long-shot proposals.  But short of pardoning every single person in federal prison — an impossibility — nothing any president does will have a significant impact on the size and reach of a criminal legal system that is almost entirely driven by local politics, policies, and funding.  The president’s biggest power is his ability to shape the debate around criminal legal policy, not the policy itself.

Biden’s proposal here did nothing to shape that debate. There are lots of ways he could have taken steps to push the discussion in the direction it needs to go, but he disappointingly chose to highlight, once again, marijuana.  That choice will make it harder to move the reform discussion beyond where it has mostly been mired for the past decade.

I am a big fan of so much of Pfaff's work, especially his emphasis on "the numbers," but there is much about this commentary that just does not add up.  For starters, these World Population data of incarceration rates suggests that the US would easily fall out of the top 10 in incarceration rates if we cut our prison population 40% by releasing everyone held for non-violent offenses.  Pfaff has long been eager to say we must not ignore violent offenders when thinking about the problem of mass incarceration.  That is basically right, but dramatic decreases in our use of prison for non-violent offense would still make a very big impact AND his own commentary highlights why this is far more politically achievable than massive cuts to sentences for violent offenders.  (Indeed, there is good reason to hope and expect that much shorter and many fewer prison sentences for non-violent offenses would serve as an essential first step to laying the foundation for reducing the overall severity scale of all our punishments.)  

More generally, Pfaff claims there is an "inability to discuss crimes of violence," but I am seeing plenty of discussion (and political ads) about crimes of violence and especially murder having increased considerably over the last few years.  When violent crime has spiked — which it clearly has and which Pfaff does not discuss — and when many polls indicate many voters are troubled greatly by this spike — which they clearly have and which Pfaff does not discuss — one should not be surprised that politicians are responsive to voter concerns about violent crime in their actions and rhetoric.  Indeed, I think it notable (and encouraging) that some criminal justice reform efforts continue moving forward (at least for non-violent crimes) even when "tough on crime" political conditions seems to be prevalent.

And while I support various reforms to PLRA and AEDPA and qualified immunity, I am not aware of any significant research or evidence that such reform will reduce violence in our communities.  If there was such evidence, these reforms could and likely would become a central element of reform supported by politicians on both sides of the aisle.  There are all sort of good arguments for all sorts of criminal justice reforms, but wishing away the facts of increased violent crime (and increased voter concerns about violent crime) will surely "make things worse for criminal legal reform in the long run," much more than will Prez Biden granting blanket pardons to thousands of marijuana possession offenders. 

October 20, 2022 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, October 19, 2022

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

October 19, 2022 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 18, 2022

Extended Final Call for Papers: "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms"

Drugs-and-Public-Safety_Call-for-Papers_for-social_new-date_1-1800x1005In this post a few months ago, I highlighted a new call for papers relating to an exciting event I am helping to plan on "Drugs and Public Safety Exploring the Impact of Policy, Policing, and Prosecutorial Reforms."  I am grateful we have already received a number of great proposals, and we have now  extended the closing date for proposals until the end of this month.  Here again is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University are organizing a symposium titled “Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms” to examine the public safety impact of marijuana and other modern drug policy reforms.  The conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms (broadly defined, including clemency policy and criminal justice reform) and public safety (broadly defined, with an emphasis on violent and serious crime).  [The conference will take place at Arizona State University, Phoenix, AZ from March 14-16, 2022.]

Background

In 1996, California kicked off a new state-driven law reform era through a ballot initiative legalizing medical marijuana.  In subsequent decades, as dozens of states legalized marijuana use, various advocates, public officials, and researchers warned about the possibility of dire public safety consequences.  More drug crimes, more general criminality, more drugged driving, and all sorts of other public safety harms were often mentioned as the possible short- or long-term consequence of significant state-level marijuana reforms.

As of summer 2022, there are 37 states with robust medical marijuana regimes and 19 with full adult-use marijuana programs.  The continued support for state-level marijuana reforms seems to reflect, at least in part, the fact that so far, researchers have not documented direct connections between marijuana reforms and adverse public safety outcomes.  Though crime is a growing public concern given the rise in violent crimes in recent years, few advocates or researchers have documented clear connections or correlations between jurisdictions that have reformed their marijuana laws and increases in crimes.

As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local level, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities. As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication in Spring of 2024.

Though proposed papers can and should look to explore the relationship between drug reforms and public safety in any number of diverse ways, the conference organizers are particularly interested in explorations of the impact of: (a) legalization of medical and/or adult-use marijuana, (b) drug decriminalization efforts, and (c) back-end relief efforts (e.g., clemency) — on crime and violence, the enforcement of criminal laws, and the operation of criminal justice systems.

Deadlines and Length of Paper

A proposed abstract of no more than 300 words are now due by October 31, 2022.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1@osu.edu.  Accepted researchers will be notified by November 18, 2022.

Participants should plan to have a full draft to discuss and circulate by March 1, 2023.  Papers may range in length from 10,000 words to 25,000 words.  Final papers for publication will be due on August 1, 2023.

October 18, 2022 in Drug Offense Sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Monday, October 17, 2022

Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress

As detailed in this extended ABC News piece, the "Justice Department is asking a federal judge to sentence Steve Bannon, adviser to former President Donald Trump, to six months in prison and make him pay a $200,000 fine for his conviction on two counts of criminal contempt of Congress, according to a new court filing." Here is more of the basics:

Bannon was found guilty in July of defying a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.  He had been subpoenaed by the Jan. 6 panel for records and testimony in September 2021.

Bannon is set to be sentenced on Friday at the D.C. courthouse by federal judge Carl Nichols at 9 a.m.  His lawyers are expected to submit their own sentencing memo Monday.

The Government's 24-page sentencing memorandum is available at this link, and it starts this way:

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.  The Committee sought documents and testimony from the Defendant relevant to a matter of national importance: the circumstances that led to a violent attack on the Capitol and disruption of the peaceful transfer of power. In response, the Defendant flouted the Committee’s authority and ignored the subpoena’s demands.  The Defendant, a private citizen, claimed that executive privilege—which did not apply to him and would not have exempted his total noncompliance even if it had—justified his actions.  Then, on the eve of trial, he attempted an about-face, representing to the Committee that former President Donald J. Trump had waived executive privilege and freed the Defendant to cooperate.  But this proved a hollow gesture; when he realized that his eleventh-hour stunt would not prevent his trial, the Defendant’s cooperative spirit vanished.  Despite the removal of the only purported barrier to his compliance, to this day the Defendant has not produced a single document to the Committee or appeared for testimony.  For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

UPDATE: Steve Bannon has also today submitted his sentencing memorandum, which can be found at this link. Here is its starting "summary":

The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment? Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers? Should a person be jailed where the prosecutor declined to prosecute others who were similarly situated – with the only difference being that this person uses their voice to express strongly held political views? If the answer to any of these questions is no, then a sentence of probation is warranted. Because we believe that the answer to each of these questions is no, we respectfully ask this Court to impose a sentence of probation, and to stay the imposition of sentence pending appeal.

October 17, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Friday, October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Thursday, October 13, 2022

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

October 13, 2022 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Tuesday, October 11, 2022

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

October 11, 2022 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Monday, October 03, 2022

A sadder Pennsylvania variation on Going in Style with elderly, ill, repeat bank robber

GoingHollywood has now twice made the movie Going in Style about a group of elderly gentlemen facing who decide to become bank robbers when facing hard financial times.  I recall getting a big kick out of the 1979 version of the movie as a kid, and I did not think quick as much about the 2017 version as an adult.  This movie came to my mind upon reading this local sad press piece, headlined "Pa. man says he robbed bank to stay in prison, not be an imposition to family," about a recent Pennsylvania state sentencing:

A 60-year-old man says he robbed a bank in Lycoming County so he would remain in jail and not burden the family with whom he has not had contact in 30 years with his medical bills. Robert A. Jones, after pleading guilty to a robbery charge Monday, told county Judge Ryan Tira his health is declining.

The judge expressed concern about Jones’ mental health but proceeded to sentence him to 45 to 90 months in state prison in accordance with the plea agreement. Restitution of $2,000 also was ordered.

Police recovered $3,000 of the $5,000 taken in the Sept. 6 robbery when Jones was arrested the next day at the halfway house in the Harrisburg area where he was living. When authorities confronted with a search warrant, Jones is alleged to have responded: “I have nothing to hide, this is my final chapter.” He was within two months of being released from the halfway house, it was noted in court.

“It’s an unfortunate situation,” his public defender Howard B. Gold said. “He prefers to spend the remaining years of his life in state prison.” Tira said he could not relate to Jones’ decision. Jones had been paroled on June 28, 2021, from the 15- to 30-year robbery sentence imposed in 2008 in Lackawanna County. He claimed when arrested last month he had robbed two dozen banks since the 1990s. Records confirm numerous charges in state and federal courts.

The Sept. 6 robbery was at the Jersey Shore State Bank office in Jersey Shore. The robber was wearing a surgical mask and a yellow rain jacket when he handed a note to a teller that stated, “this is a robbery” and then told her to “just remember your training.” He was handed $5,000 in $100, $50 and $20 bills and then left the bank.

Jones was observed on surveillance video running away from the bank and while cutting through a parking lot removing a yellow jacket. Shortly after he disappeared, a 1999 Toyota Camry appeared and a video showed a yellow object in the back seat. The license plate was visible so police were able to determine the car was owned by Jones....

Surveillance video showed Jones removing a black bag from the Camry in the halfway house parking lot and taking it inside. He was wearing clothing similar to that of the robber. Found inside the vehicle, police said, was a yellow rain jacket, beige colored hat, medical mask and more than $3,000 in currency.

Jones told Tiadaghton Valley Regional Police Officer Justin Segura this was the end of the road, it was a call for help and he had no intent to harm anyone in the bank, the arrest affidavit states. The state Parole Board has lodged a detainer against Jones so could face more court action.

October 3, 2022 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Tuesday, September 27, 2022

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.

September 27, 2022 in Data on sentencing, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, September 26, 2022

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

September 26, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Another look at Oregon's drug decriminalization efforts now a few years in

A have done periodic posts (some linked below) over the last couple of years based on press accounts of Oregon's drug decriminalization efforts after state residents in Fall 2020 passed Measure 110 to makes possession of small amounts of various illicit drugs punishable by only a civil citation.  This new AP article, headlined "After rocky start, hopes up in Oregon drug decriminalization," provides the latest "updates from the front."  Here are excerpts:

Two years after Oregon residents voted to decriminalize hard drugs and dedicate hundreds of millions of dollars to treatment, few people have requested the services and the state has been slow to channel the funds.

When voters passed the state’s pioneering Drug Addiction Treatment and Recovery Act in 2020, the emphasis was on treatment as much as on decriminalizing possession of personal-use amounts of heroin, cocaine, methamphetamine and other drugs.

But Oregon still has among the highest addiction rates in the country. Fatal overdoses have increased almost 20% over the previous year, with over a thousand dead. Over half of addiction treatment programs in the state lack capacity to meet demand because they don’t have enough staffing and funding, according to testimony before lawmakers.

Supporters want more states to follow Oregon’s lead, saying decriminalization reduces the stigma of addiction and keeps people who use drugs from going to jail and being saddled with criminal records. How Oregon is faring will almost certainly be taken into account if another state considers decriminalizing.

Steve Allen, behavioral health director of the Oregon Health Authority, acknowledged the rocky start, even as he announced a “true milestone” has been reached, with more than $302 million being sent to facilities to help people get off drugs, or at least use them more safely. “The road to get here has not been easy. Oregon is the first state to try such a bold and transformative approach,” Allen told a state Senate committee Wednesday.

One expert, though, told the lawmakers the effort is doomed unless people with addictions are nudged into treatment. “If there is no formal or informal pressure on addicted people to seek treatment and recovery and thereby stop using drugs, we should expect continuing high rates of drug use, addiction and attendant harm,” said Keith Humphreys, an addiction researcher and professor at Stanford University and former senior adviser in the White House Office of National Drug Control Policy.

Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment, the health authority said. A total of 60% received “harm reduction” like syringe exchanges and overdose medications. An additional 15% got help with housing needs, and 12% obtained peer support....

Under the law, people receive a citation, with the maximum $100 fine waived if they call a hotline for a health assessment.  But most of the more than 3,100 tickets issued so far have been ignored, Oregon Public Broadcasting reported. Few people have dialed the hotline.

Tera Hurst, executive director of Oregon Health Justice Recovery Alliance, which is focused on implementing Measure 110, said coerced treatment is ineffective. Hurst said it’s important to focus on “just building a system of care to make sure that people who need access can get access.”  Allen called the outlay of million of dollars — which come from taxes on Oregon’s legal marijuana industry — a “pivotal moment.”...

Centro Latino Americano, a nonprofit serving Latino immigrant families, plans to use its $4.5 million share to move treatment services to a bigger space and hire more staff, said manager Basilio Sandoval.  “Measure 110 makes it possible for us to provide this service free of charge,” Sandoval said. “This allows us to reach people we could not serve previously because of a lack of insurance.”

Scott Winkels, lobbyist for the League of Oregon Cities, said residents are running out of patience.  “People are going to need to see progress,” Winkels said.  “If you’re living in a community where you’re finding needles, how many times do you need to see a needle in a park before you lose your cool?”

Some prior related posts:

September 26, 2022 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10)

Monday, September 19, 2022

Interesting report on the echoes of the Supreme Court's recent Ruan decision

As noted in this post last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law has this great panel discussion scheduled for tomorrow to discuss various aspects of the Supreme Court's work last term in Ruan v. United States.  (Folks can and should register here for this event.)  Coincidently, CBS News has this lengthy new piece discussing the case's impact under the headline "Doctors rush to use Supreme Court ruling to escape opioid charges."  Here are excerpts:

Dr. Nelson Onaro conceded last summer that he'd written illegal prescriptions, although he said he was thinking only of his patients. From a tiny, brick clinic in Oklahoma, he doled out hundreds of opioid pills and dozens of fentanyl patches with no legitimate medical purpose. "Those medications were prescribed to help my patients, from my own point of view," Onaro said in court, as he reluctantly pleaded guilty to six counts of drug dealing. Because he confessed, the doctor was likely to get a reduced sentence of three years or less in prison.

But Onaro changed his mind in July. In the days before his sentencing, he asked a federal judge to throw out his plea deal, sending his case toward a trial. For a chance at exoneration, he'd face four times the charges and the possibility of a harsher sentence.

Why take the risk? A Supreme Court ruling has raised the bar to convict in a case like Onaro's. In a June decision, the court said prosecutors must not only prove a prescription was not medically justified ― possibly because it was too large or dangerous, or simply unnecessary ― but also that the prescriber knew as much. Suddenly, Onaro's state of mind carries more weight in court. Prosecutors have not opposed the doctor withdrawing his plea to most of his charges, conceding in a court filing that he faces "a different legal calculus" after the Supreme Court decision.

The court's unanimous ruling complicates the Department of Justice's ongoing efforts to hold irresponsible prescribers criminally liable for fueling the opioid crisis. Previously, lower courts had not considered a prescriber's intention. Until now, doctors on trial largely could not defend themselves by arguing they were acting in good faith when they wrote bad prescriptions. Now they can, attorneys say, although it is not necessarily a get-out-of-jail-free card. "Essentially, the doctors were handcuffed," said Zach Enlow, Onaro's attorney. "Now they can take off their handcuffs. But it doesn't mean they are going to win the fight."

The Supreme Court's decision in Ruan v. United States, issued June 27, was overshadowed by the nation-shaking controversy ignited three days earlier, when the court erased federal abortion rights. But the lesser-known ruling is now quietly percolating through federal courthouses, where it has emboldened defendants in overprescribing cases and may have a chilling effect on future prosecutions of doctors under the Controlled Substances Act.

In the three months since it was issued, the Ruan decision has been invoked in at least 15 ongoing prosecutions across 10 states, according to a KHN review of federal court records. Doctors cited the decision in post-conviction appeals, motions for acquittals, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, arguing their opinion was now irrelevant. Other defendants have successfully petitioned to delay their cases so the Ruan decision could be folded into their arguments at upcoming trials or sentencing hearings.

David Rivera, a former Obama-era U.S. attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a "great chance" of overturning convictions if they were prohibited from arguing a good faith defense or a jury was instructed to ignore one. Rivera said defendants who ran true pill mills would still be convicted, even if a second trial was ultimately required. But the Supreme Court has extended a "lifeline" to a narrow group of defendants who "dispensed with their heart, not their mind," he said.

"What the Supreme Court is trying to do is divide between a bad doctor and a person who might have a license to practice medicine but is not acting as a doctor at all and is a drug dealer," Rivera said. "A doctor who is acting under a sincerely held belief that he is doing the right thing, even if he may be horrible at his job and should not be trusted with human lives ― that's still not criminal."...

To defense attorneys, the unanimous ruling sent an unambiguous message. "This is a hyperpolarized time in America, and particularly on the court," Enlow said. "And yet this was a 9-0 ruling saying that the mens rea ― or the mental state of the doctor ― it matters."

Some prior related posts:

September 19, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, September 12, 2022

"Ruan v. United States: Implications for Criminal Law, Health Care, and Beyond"

606e9d1f-2ef6-49f0-bbd7-fcb1b4ce9f73The title of this post is the title of this great panel discussion hosted by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law which is scheduled for midday on Tuesday, September 20.  Folks can and should register here for this event, which is described this way on this event page:

What must prosecutors prove about a defendant’s mental state in order to convict them of unauthorized distribution of controlled substances under federal drug laws?  In the case of Ruan v. United States, the Supreme Court ruled that the Government must prove the defendant knowingly or intentionally acted in an unauthorized manner.  But because the defendants in this case were medical doctors involved in questionable opioid prescribing practices, the case has generated an array of public policy questions.  The Government, stressing opioid overdose deaths and the broad harms of the opioid epidemic, argued the law should be interpreted to apply an objective standard for criminal liability.  The doctors, and many amici briefs, argued that an objective standard could criminalize merely careless prescribing and could deter responsible doctors from trying any novel medical therapies that had not yet been accepted by traditional medical practice.

Join the Drug Enforcement and Policy Center and our panel of experts as they discuss the doctrines and broader policies involved in the Ruan case and the implications for criminal law and beyond.

Panelists:

  • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
  • Kelly Dineen, Associate Professor of Law, Director of the Health Law Program, Creighton University School of Law
  • Martin Fried, Clinical Assistant Professor of Internal Medicine, Wexner Medical Center, The Ohio State University
  • Jennifer Oliva, Professor of Law, UC Hastings Law

Moderator:

Patricia Zettler, Associate Professor of Law, Ohio State University Moritz College of Law

September 12, 2022 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Sunday, September 11, 2022

Making the case for jury nullification in response to criminalization of abortion

LawProfs Peter Sali and Guha Krishnamurthi have this notable new Inquest piece talking up jury nullification as having "a role to play in securing reproductive rights" in the wake of the Supreme Court reversal of Roe.  The piece is fully titled "Nullifying Dobbs: Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands." (The Inquest piece is a shorter exposition of this essay on SSRN titled "Nullification in Abortion Prosecutions: An Equilibrium Theory.")  Here is an excerpt:

[W]e expect the effect of nullification on abortion prosecutions to be twofold.  First, it will reduce the range of cases that will be brought.  Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges.  Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases.  This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification.  Marijuana prosecutions are a relevant precedent.  In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half.  Today, only about a third of Americans approve of such laws.  Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%.  We think that this was not a coincidence.  As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular.  Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself....

Nullification cannot and will not fix everything.  Nullification itself comes at the end of the criminal process.  The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating.  Nullification cannot directly alleviate those harms.  Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process.  But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment....

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment.  The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans.  Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

I have flagged the passage here discussing declining federal marijuana prosecutions in part because I co-wrote an article last year on this topic, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."   As explained in that article, a sharp decline in marijuana seizures at the southern US border (as states have legalized local grows) likely most directly explains the sharp decline of federal marijuana prosecutions.  Still, the disinclination of federal prosecutors to go after state-legalized marijuana activities — especially during the Trump Administration when many DOJ officials were clearly not so keen on marijuana reform — likely has reflected the reality that more and more citizens may be less and less likely to support using criminal laws to punish "responsible" marijuana activity.

A few prior related posts:

September 11, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, September 08, 2022

Spotlighting disparities in voter fraud prosecutions and punishments

The New York Times has this lengthy new piece highlighting that the uneven application of justice around the country when it comes to cases of voter fraud.  The full headline of this piece highlights its themes: "In Voter Fraud, Penalties Often Depend on Who’s Voting: Cases in Florida and a survey of prosecutions nationally indicate that despite the furor over voter fraud, prosecutions remain exceedingly rare and penalties vary wildly."  Here is how this piece starts:

After 15 years of scrapes with the police, the last thing that 33-year-old Therris L. Conney needed was another run-in with the law. He got one anyway two years ago, after election officials held a presentation on voting rights for inmates of the county jail in Gainesville, Fla.  Apparently satisfied that he could vote, Mr. Conney registered after the session, and cast a ballot in 2020.  In May, he was arrested for breaking a state law banning voting by people serving felony sentences — and he was sentenced to almost another full year in jail.

That show-no-mercy approach to voter fraud is what Gov. Ron DeSantis, a Republican, has encouraged this year during his re-election campaign.  “That was against the law,” he said last month about charges against 20 other felons who voted in Florida, “and they’re going to pay a price for it.”

But many of those cases seem to already be falling apart, because, like Mr. Conney, the former felons did not intend to vote illegally.  And the more typical kind of voter-fraud case in Florida has long exacted punishment at a steep discount.

Last winter, four residents of the Republican-leaning retirement community The Villages were arrested for voting twice — once in Florida, and again in other states where they had also lived. Despite being charged with third-degree felonies, the same as Mr. Conney, two of the Villages residents who pleaded guilty escaped having a criminal record entirely by taking a 24-hour civics class. Trials are pending for the other two.

Florida is an exaggerated version of America as a whole.  A review by The New York Times of some 400 voting-fraud charges filed nationwide since 2017 underscores what critics of fraud crackdowns have long said: Actual prosecutions are blue-moon events, and often netted people who didn’t realize they were breaking the law.

Punishment can be wildly inconsistent: Most violations draw wrist-slaps, while a few high-profile prosecutions produce draconian sentences.  Penalties often fall heaviest on those least able to mount a defense.  Those who are poor and Black are more likely to be sent to jail than comfortable retirees facing similar charges.

September 8, 2022 in Offense Characteristics, Who Sentences | Permalink | Comments (2)

Monday, September 05, 2022

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.

September 5, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Thursday, September 01, 2022

Longest prison term yet — 10 years — given to Jan 6 rioter who assaulted police officer

As reported in this Politico piece, a " federal judge on Thursday sentenced former New York cop Thomas Webster to 10 years in prison for assaulting a police officer outside the Capitol on Jan. 6, 2021, the longest sentence handed down yet in cases that arise from the attack."  Here is more:

U.S. District Court Judge Amit Mehta described Webster’s assault on D.C. police officer Noah Rathbun as one of the most haunting and shocking images from that violent day.

“I do wish you hadn’t come to Washington D.C. I do wish you had stayed home in New York, that you had not come out to the Capitol that day,” Mehta said. “Because all of us would be far better off. Not just you, your family, country. We’d all be far better off. Yet here we are.”

Mehta said he viewed Webster’s conduct as among the most egregious of any defendant sentenced so far. Until Thursday, the lengthiest sentences had been given to Texas militia member Guy Reffitt and local Virginia police officer Thomas Robertson, who were convicted by juries of attempting to obstruct congressional proceedings.

It’s the latest in a string of steeper sentences that have been issued as rioters facing felony charges — some of whom have taken their cases to trial — learn their fate from the judges who have presided over their cases for more than a year.

Images of Webster attempting to rip the gas mask off of Rathbun’s face amid broader chaos at the Capitol are among the most indelible images to emerge from the Jan. 6 attack. Mehta expressed incredulity that Webster took the stand in his own defense and attempted to argue that his effort to rip the officer’s gas mask off was really just to show him his hands and prove he wasn’t a threat.

Notably, though this case represents the longest sentencing to date for a Jan 6 rioter, the sentence of 10 years is still a full 7+ years below what the federal sentencing guidelines recommended (and what the federal prosecutors requested).

Some of many prior related posts:

September 1, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Monday, August 29, 2022

US Sentencing Commission releases big new report on "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence"

Though a full new US Sentencing Commission was confirmed earlier this month, the outgoing folks are continuing to release notable new research reports as we await new action from the newbies.  The latest USSC report runs nearly 100 pages under the title "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence." This USSC webpage provides this background with key findings:

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Key Findings:

  • The major innovations of the organizational guidelines are (1) incentivizing organizations to self-police their behavior; (2) providing guidance on effective compliance and ethics programs that organizations can implement to demonstrate efforts to self-police; and (3) holding organizations accountable based on specific factors of culpability.
  • The most significant achievement of Chapter Eight has been the widespread acceptance of the organizational guidelines' criteria for developing and maintaining effective compliance and ethics programs to prevent, detect, and report criminal conduct.
  • During the 30-year period since promulgation of the organizational guidelines, 4,946 organizational offenders have been sentenced in the 94 federal judicial districts. The majority of organizational offenders are domestic (88.1%), private (92.2%), and smaller organizations with fewer than 50 employees (70.4%).
  • Six offense types accounted for 80.4 percent of all organizational offenders from fiscal years 1992 through 2021.
    • Fraud (30.1%) and environmental (24.0%) offenses, accounted for more than half (54.1%) of all organizational offenses.
    • Other common offense types were antitrust (8.4%), food and drug (6.6%), money laundering (6.1%), and import and export crimes (5.2%).
  • Commission data suggests that the lack of an effective compliance and ethics program may be a contributing factor to criminal prosecutions against organizations.
    • Since fiscal year 1992, the overwhelming majority of organizational offenders (89.6%) did not have any compliance and ethics program.
    • Only 11 of the 4,946 organizational offenders sentenced since fiscal year 1992 received a culpability score reduction for having an effective compliance and ethics program.
    • More than half (58.3%) of the organizational offenders sentenced under the fine guidelines received a culpability score increase for the involvement in or tolerance of criminal activity.
    • Few organizational offenders (1.5% overall) received the five-point culpability score reduction for disclosing the offense to appropriate authorities prior to a government investigation in addition to their full cooperation and acceptance of responsibility.
    • Since fiscal year 2000, courts ordered one-fifth (19.5%) of organizational offenders to implement an effective compliance and ethics program.
  • Since fiscal year 1992, the courts have imposed nearly $33 billion in fines on organizational offenders. The average fine imposed was over $9 million and the median amount was $100,000.
  • Since fiscal year 1992, courts sentenced over two-thirds of organizational offenders (69.1%) to a term of probation and the average length of the term of probation imposed was 39 months.

August 29, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, August 28, 2022

Grappling with parole possibilities a quarter-century after horrific school shooting by young teen

The Washington Post has this compelling new piece on what would appear to be the first modern teen school shooter now about to get parole consideration 25 years after his crime.  I recommend the article in full, and it is headlined "A school shooting shattered a town in 1997. Now the gunman could get parole."  Here are excerpts:

At first, Missy Jenkins Smith thought the sound of gunfire at her Kentucky high school was a bad joke.  Her prayer group had just said, “Amen,” and their day was about to begin.  Then one of her classmates fell to the floor, shot in the head. Another student was hit. Then another.  And suddenly, the 14-year-old boy wielding a Ruger .22 fired seven bullets indiscriminately toward the teens gathered inside Heath High School on Dec. 1, 1997, the Monday morning after Thanksgiving break....

The attack upended the small town of West Paducah, in what was then a rarity in the United States: a school shooting. Three students — Nicole Hadley, 14; Jessica James, 17; and Kayce Steger, 15 — were killed and five others wounded. Michael Carneal pleaded guilty and was sentenced to life in prison.  But under Kentucky law, the teenager who claimed to have been bullied was given the possibility of parole in 25 years....

Carneal is up for a hearing next month in what family members of the deceased, survivors and experts say is among the first instances that an assailant in a school shooting has a chance at being released.  The proceeding will be held Sept. 19 and 20 over Zoom to determine whether Carneal, now 39, will be released in November.

The prospect of Carneal potentially getting released has reopened wounds for those who still carry the pain from a shooting largely forgotten by America.  The case also presents a unique question as school shootings continue to afflict the nation: What should happen to child assailants who decades later become eligible for release?

Privately, survivors and families of the victims in Kentucky have grappled with whether and how to forgive him — and if the pain he has caused makes that even possible....

The West Paducah attack was among the first school shootings to rock the country — unfolding 16 months before the Columbine High School massacre in Colorado changed the perception of classroom safety. “When Carneal did what he did, he ripped the veil off that feeling of security in school,” said Assistant McCracken County Commonwealth’s Attorney Jamie Mills, “and, obviously, we have not been able to get that back.”...

In Kentucky, the state passed a juvenile code in 1986 that allows for life sentences as long as parole is considered after 25 years.  At the time, Kentucky prosecutors were given leeway from the state to try teens between the ages of 14 and 17 as adults for serious crimes. But Carneal was charged as a minor.  And in October 1998, he pleaded guilty but mentally ill — requiring him to receive mental health care while in prison.  He was later diagnosed with schizophrenia.  Carneal has repeatedly challenged his guilty plea, arguing in 2007 that he was too mentally ill to submit the plea and pushing for it to be withdrawn altogether in 2012.  Both efforts were rejected....

Dan Boaz, the commonwealth’s attorney for McCracken County, said his goal is to make sure Carneal remains “incarcerated for as long as he lives.”  Although it’s unclear how the Kentucky Parole Board — a mix of appointees from former Republican governor Matt Bevin and Democratic Gov. Andy Beshear — will act, the bar for giving a school shooter parole is much harder, given the regularity of shootings in America.

“We have seen a bit of momentum in America in acknowledging that young people tried with crimes should be given another opportunity, but a school shooting case is going to be the hardest one for a parole board,” said Rachel Barkow, a professor of law at New York University and an expert on parole.  “It’s not supposed to be based on the crime itself, but, realistically speaking, it’s very hard for any parole board not to take into account the nature of the initial crime.”

August 28, 2022 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, August 21, 2022

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

MaxresdefaultThe question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

August 21, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, August 20, 2022

US Sentencing Commission reports on "Federal Robbery: Prevalence, Trends, And Factors In Sentencing"

The US Sentencing Commission has released this new research report that provides a "comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed."  Additional background and Key Findings are available at this USSC webpage, and here are some highlights from that page:

The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery.

This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders.

Key Findings

  • Robbery offenders have consistently comprised a small but increasing proportion of the federal criminal caseload.
    • During fiscal years 2012 to 2021, the proportion of robbery offenders increased from 1.9 percent to 2.3 percent of the federal caseload....
  • Robbery offenders have criminal histories that are more extensive and more serious than other violent offenders.
    • Only one-quarter (26.5%) of robbery offenders were in the least serious criminal history category, CHC I, compared to 40.7 percent of other violent offenders....
  • Robbery offenders often engaged in dangerous aggravating conduct. In fiscal year 2021, a majority of robbery offenses involved dangerous weapons and threats of physical force against a victim.
    • Over three-quarters (77.6%) of robberies involved dangerous weapons. Firearms were the predominant type of weapon — they were present in 79.8 percent of robberies involving weapons.
    • The overwhelming majority (89.7%) of robberies involved a threat of physical force against a victim, and over one-quarter (25.7%) involved the use of physical force against a victim. A victim sustained bodily injury in 11.8 percent of robberies.
  • Robbery offenders received substantial sentences—on average 105 months of imprisonment in fiscal year 2021 — but sentences varied significantly depending upon whether the offender was also convicted under 18 U.S.C. § 924(c).
    • A substantial proportion (40.6%) of robbery offenders sentenced in fiscal year 2021 also had a conviction under section 924(c) for using or carrying a firearm during the offense.
    • The average sentence imposed for robbery offenders also convicted under section 924(c) was 155 months of imprisonment, compared to an average sentence of 71 months for robbery offenders without a section 924(c) conviction.

August 20, 2022 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4)

Thursday, August 18, 2022

California board, after 17 rejections, finally paroles last person convicted in 1976 school bus mass kidnapping

This Los Angeles Times article, headlined "Man behind 1976 kidnapping of 26 Chowchilla children and bus driver is granted parole," reports on a notable parole outcome this week.  Here are just some of the interesting particulars:

A parole board affirmed Tuesday that Frederick Woods, one of three men convicted of kidnapping a school bus full of 26 children and their driver in Chowchilla, Calif., in 1976 in an effort to coerce a $5-million ransom, will be released.

Woods, 70, was first found suitable for parole in a hearing at the California Men’s Colony in San Luis Obispo on March 25, marking the 18th time he appeared in front of the parole board, according to Terry Thornton, a spokesperson for the California Department of Corrections and Rehabilitation. Woods had previously been denied parole 17 times.

Gov. Gavin Newsom referred Woods’ parole grant for review by the board, which occurred Tuesday. Woods’ release date was not disclosed because of safety and security reasons, Thornton said.

Woods, with accomplices Richard and James Schoenfeld, had schemed for more than a year on a kidnap for ransom plan. An appeals court ordered Richard Schoenfeld’s release in 2012; then-Gov. Jerry Brown granted release for James Schoenfeld, Richard’s brother, in 2015.

In July 1976, farmer and bus driver Ed Ray was driving a yellow school bus carrying elementary students from Dairyland Unified when he saw a white van stopped in the road. Ray slowed the bus to see if those in the van needed assistance, and three men armed with guns jumped out, commandeering the bus and driving it into a dry canal bottom, where they had left another van.

Ray and the schoolchildren were loaded into the two vans and driven for 11 hours to a quarry in Livermore, 100 miles from Chowchilla. The kidnappers forced them to climb down a ladder into a moving trailer they buried.

Ray and some of the children started stacking mattresses, ultimately managing to get out of the trailer 16 hours later. Meanwhile, the three kidnappers left and tried to contact the Chowchilla Police Department to make their ransom demand but were unable to get through because the phone lines were busy. They napped and awoke to the news of the escape, and were captured or surrendered within weeks. Ray was hailed as a hero. He died in May 2012 at age 91.

James Schoenfeld told parole officials that he was jealous of his friends who had “his-and-hers Ferraris.” Woods, who was 24 at the time of the crime, said during an earlier parole hearing that he just “got greedy,” saying in 2012 that he didn’t need the money. Woods is the son of Frederick Woods III, who owned the quarry and a 100-acre Portola Valley Estate; the Schoenfelds came from the family of a wealthy Menlo Park podiatrist. “I’ve had empathy for the victims, which I didn’t have then,” Woods said at the March parole hearing. “I’ve had a character change since then.”...

Madera County Dist. Atty. Sally Moreno came out against Woods’ release in a statement after the hearing. “It’s hard to articulate everything I’m feeling — all the suffering that he caused to those children throughout their lives, which will continue unabated; his continuing inability to conform his behavior to the rules demonstrating his own unrepentance and lack of rehabilitation; his obvious lack of understanding of the impact his acts have on others as demonstrated by the totality of his conduct in prison,” she said....

Jennifer Brown Hyde, one of the survivors opposing Woods’ parole and who now lives in Tennessee, was 9 years old during the kidnapping. She said she and her family were “disappointed in the parole board’s decision.”...

The three men were convicted of kidnapping with bodily harm and given life sentences. Newsom’s father, state Judge William Newsom, was on the 1980 appellate panel that reduced their life sentences to give them an opportunity at parole. William Newsom advocated for the kidnappers to be released in 2011, saying no one was seriously injured in the incident. He died in 2018.

Survivor Larry Park, who supported Woods’ release during the March parole hearing, said he believes Woods “served enough time for the crime you committed.” However, Park encouraged Woods to seek help. “I’m concerned about the addiction you may have about money,” Park said.

August 18, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 17, 2022

Woman reportedly given 34-year prison term(!) for Twitter activity by Saudi Arabia's special terrorist court

I know relatively little about sentencing law and processes in other nations, but I do know that this new Guardian report about an extreme Saudi Arabian sentence is quite disconcerting.  The press piece is fully headlined "Saudi woman given 34-year prison sentence for using Twitter; Salma al-Shehab, a Leeds University student, was charged with following and retweeting dissidents and activists."  Here are excerpts:

A Saudi student at Leeds University who had returned home to the kingdom for a holiday has been sentenced to 34 years in prison for having a Twitter account and for following and retweeting dissidents and activists....

Salma al-Shehab, 34, a mother of two young children, was initially sentenced to serve three years in prison for the “crime” of using an internet website to “cause public unrest and destabilise civil and national security”. But an appeals court on Monday handed down the new sentence – 34 years in prison followed by a 34-year travel ban – after a public prosecutor asked the court to consider other alleged crimes.

According to a translation of the court records, which were seen by the Guardian, the new charges include the allegation that Shehab was “assisting those who seek to cause public unrest and destabilise civil and national security by following their Twitter accounts” and by re-tweeting their tweets. It is believed that Shehab may still be able to seek a new appeal in the case.

By all accounts, Shehab was not a leading or especially vocal Saudi activist, either inside the kingdom or in the UK. She described herself on Instagram – where she had 159 followers – as a dental hygienist, medical educator, PhD student at Leeds University and lecturer at Princess Nourah bint Abdulrahman University, and as a wife and a mother to her sons, Noah and Adam.

Her Twitter profile showed she had 2,597 followers. Among tweets about Covid burnout and pictures of her young children, Shehab sometimes retweeted tweets by Saudi dissidents living in exile, which called for the release of political prisoners in the kingdom. She seemed to support the case of Loujain al-Hathloul, a prominent Saudi feminist activist who was previously imprisoned, is alleged to have been tortured for supporting driving rights for women, and is now living under a travel ban....

A person who followed her case said Shehab had at times been held in solitary confinement and had sought during her trial to privately tell the judge something about how she had been handled, which she did not want to state in front of her father. She was not permitted to communicate the message to the judge, the person said. The appeals verdict was signed by three judges but the signatures were illegible....

The European Saudi Organization for Human Rights condemned Shehab’s sentence, which it said was the longest prison sentence to ever be brought against any activist. It noted that many female activists have been subjected to unfair trials that have led to arbitrary sentences and have been subjected to “severe torture”, including sexual harassment. Khalid Aljabri, a Saudi who is living in exile and whose sister and brother are being held in the kingdom, said the Shehab case proved Saudi Arabia’s view that dissent equates to terrorism.

“Salma’s draconian sentencing in a terrorism court over peaceful tweets is the latest manifestation of MBS’s ruthless repression machine,” he said, referring to the crown prince. “Just like [journalist Jamal] Khashoggi’s assassination, her sentencing is intended to send shock waves inside and outside the kingdom – dare to criticise MBS and you will end up dismembered or in Saudi dungeons.”

August 17, 2022 in Offense Characteristics, Sentencing around the world, Who Sentences | Permalink | Comments (0)

"Countermajoritarian Criminal Law"

The title of this post is the title of this new article now available via SSRN authored by Michael L. Smith. Here is its abstract:

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year.  All too often, culpability is a minimal or nonexistent aspect of this phenomenon.  Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions.  Recent scholarship has criticized not only the scope and impact of these laws, but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.”  While some critics argue that criminal law often fails to live up to supermajoritarian ideals, this Article identifies instances in which criminal law is resistant to the will of the community, and can remain in place even if a majority of the community seeks to legalize or decriminalize certain conduct.  These instances include vetoes of decriminalization and legalization efforts, criminal provisions in federal and state constitutions, and local crimes enacted by officials who are voted into office by a tiny subset of the community.

Having identified the phenomenon of countermajoritarian criminal laws, this Article discusses how these laws may be addressed — and considers a range of potential reforms and their impact on countermajoritarian criminal laws. Countermajoritarian criminal laws should be a focal point in calls for criminal justice reform.  Addressing these laws provides a basis for arguments regarding criminal law’s larger problem of democratic illegitimacy, and helps add a level of criticism on top of existing critiques of criminal law’s broad, discriminatory, and oppressive impacts on communities. 

August 17, 2022 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, August 11, 2022

Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison

Last week, as discussed in this post, Guy Reffitt, the first Jan. 6 defendant to be convicted at a jury trial (rather than through plea), was sentenced to 87 months in federal prison.  This AP piece reports on today's sentencing of another Jan 6 defendant conviction at trial and the similar outcome (coming from a different sentencing judge):

An off-duty Virginia police officer who stormed the U.S. Capitol on Jan, 6, 2021, with a fellow officer was sentenced Thursday to more than seven years in prison, matching the longest prison sentence so far among hundreds of Capitol riot cases.

Former Rocky Mount Police Sgt. Thomas Robertson declined to address the court before U.S. District Judge Christopher Cooper sentenced him to seven years and three months in prison.  Cooper also sentenced Robertson to three years of supervised release after his prison term.

Federal prosecutors had recommended an eight-year prison sentence for Robertson.  His sentence equals that of Guy Reffitt, a Texas man who attacked the Capitol while armed with a holstered handgun.  Robertson gets credit for the 13 months he has already spent in custody.  Robertson has been jailed since Cooper ruled last year that he violated the terms of his pretrial release by possessing firearms.

The judge said he was troubled by Robertson's conduct since his arrest — not only his stockpiling of guns but also his words advocating for violence.  After Jan. 6, Robertson told a friend that he was prepared to fight and die in a civil war and he clung to baseless conspiracy theories that the 2020 election was stolen from then-President Donald Trump, the judge noted.

Sentencing guidelines calculated by Cooper recommended a prison term ranging from seven years and three months to nine years.  “It's a long time because it reflects the seriousness of the offenses that you were convicted of,” the judge said.

In April, a jury convicted Robertson of attacking the Capitol to obstruct Congress from certifying Joe Biden’s 2020 presidential victory.  Jurors found Robertson guilty of all six counts in his indictment, including charges that he interfered with police officers at the Capitol and that he entered a restricted area with a dangerous weapon, a large wooden stick....

Robertson traveled to Washington on that morning with another off-duty Rocky Mount police officer, Jacob Fracker, and a third man, a neighbor who wasn't charged in the case.  Fracker was scheduled to be tried alongside Robertson before he pleaded guilty to a conspiracy charge in March and agreed to cooperate with federal authorities. Cooper is scheduled to sentence Fracker next Tuesday.

Prosecutors have asked Cooper to spare Fracker from a prison term and sentence him to six months of probation along with a period of home detention or “community confinement.”  They said Fracker's “fulsome” cooperation and trial testimony was crucial in securing convictions against Robertson.

Robertson's lawyer, Mark Rollins, sought a prison sentence below two years and three months. He questioned the fairness of the wide gap in sentences that prosecutors recommended for Robertson and Fracker given their similar conduct. Robertson served his country and community with distinction, his lawyer told the judge. “His life already is in shambles,” Rollins said....

In a letter addressed to the judge, Robertson said he took full responsibility for his actions on Jan. 6 and “any poor decisions I made.” He blamed the vitriolic content of his social media posts on a mix of stress, alcohol abuse and “submersion in deep ‘rabbit holes’ of election conspiracy theory.” “I sat around at night drinking too much and reacting to articles and sites given to me by Facebook” algorithms, he wrote.

A few of many prior related posts:

August 11, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Man beats his dog ... and gets 25 years in a Texas prison!?!

I just saw a discussion of what sound like a remarkable local sentencing case out of Texas.  This local story, headlined "San Antonio man handed one of Texas' longest ever animal abuse prison sentences," provides these basics:

A San Antonio man is headed to prison on one of the longest sentences for animal abuse in Texas History.

Animal Care Services said that Frank Javier Fonseca was sentenced to 25 years in prison on animal abuse charges for a violent beating of his puppy, which was captured on video. He was sentenced in June and has previous felony convictions that include drug possession and crimes of retaliation, according to an ACS news release.

The video was captured in February 2019, showing Fonseca repeatedly hitting his young Rottweiler puppy named Buddy with his fists and a piece of wood, as well as kicking and choking the dog. ACS said the video was recorded by "an anonymous Good Samaritan." Court records show Fonesca was arrested in September 2021.

The 56-year-old San Antonio man told ACS that he was disciplining the dog for leaving his yard on Fenfield Avenue. Buddy survived the abusive attack and is now living with a new adoptive family, officials said.

This new Reason commentary, authored by Billy Binion, rightly questions this outcome under this full headline: "A 25-Year Prison Sentence for Beating Up a Dog Is Not Justice: Frank Javier Fonseca's punishment, which may amount to a life sentence, is a microcosm for many of the issues with the U.S. criminal legal system."  

A quick google search has not turned up much more information to justify or even fully explains what seems like a severe outcome, though I suppose I should never be too surprised by the lengthy sentences that can be and often are imposed under various habitual offender statutes.

August 11, 2022 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (6)

Monday, August 08, 2022

Two federal LWOP sentences and a 35-year term for Ahmaud Arbery's killers

In this post six months ago, I asked "Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?". The answer turns out to be no, as detailed in this NBC News article about today's sentencing:

The father and son convicted of murdering Ahmaud Arbery were both given an additional sentence of life in prison Monday on federal hate crime charges, while their neighbor was sentenced to 35 years in prison. A judge also required that Travis McMichael, 36, Greg McMichael, 66, and William “Roddie” Bryan, 52, serve their sentences in state prison, not federal prison as had been requested by their attorneys.

"A young man is dead. Ahmaud Arbery will be forever 25. And what happened, a jury found, happened because he’s Black," U.S. District Judge Lisa Godbey Wood said during Greg McMichael's sentencing.

The McMichaels and Bryan, who are all white, were found guilty in February on federal hate crime charges in the killing of Arbery, a Black man who was running in their neighborhood when the defendants confronted him in February 2020. The three men were convicted of all of the federal charges against them, including hate crimes, attempted kidnapping and the use of a firearm to commit a crime.

Prosecutors sought life sentences for all three men. However, Godbey Wood said she thought it was necessary to distinguish Bryan from the McMichaels, in part because unlike his neighbors, he did not bring a gun with him when the men chased Arbery. "It is not lost on the court that two men brought guns to that situation that had their worst effect and you weren’t one of them," she said. She added, however, that Bryan was “still deserving of an awfully long sentence."...

The federal case followed a state trial in November in which the men were convicted of murder and given life sentences. They have appealed their convictions in that case.

Prior related posts:

August 8, 2022 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, August 01, 2022

"Sex Exceptionalism in Criminal Law"

The title of this post is the title of this notable new article authored by Aya Gruber now available via SSRN.  Here is its abstract:

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

August 1, 2022 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, July 28, 2022

"Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion"

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

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that extreme conservative states will seek to criminalize abortion and impose extreme sentences for such crimes, up to and including death.  This Article addresses that reality.  Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics.  After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the most extreme states on both issues, referenced as “Punitive States.”

Then, addressing the post-Dobbs reality that Punitive States could attempt to punish abortion by death, this Article shows that the current capital sentencing framework used across the country is incompatible with abortion offenses.  The aggravating factors and mitigating circumstances, if applied to abortion offenses, would not serve their constitutional purposes.  Therefore, this Article argues, capital sentences imposed under the current framework for abortion offenses would stand in violation of the Sixth and Eighth Amendments to the U.S. Constitution.  Further, this Article argues that attempts to write abortion-specific capital sentencing proceedings would prove to be acts in futility.  Thus, the Article ultimately concludes that death is not a viable punishment for abortion.

July 28, 2022 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (17)

Wednesday, July 27, 2022

Another notable lengthy sentence imposed on another Jan 6 rioter

This Washington Post article, headlined "D.C. man is 2nd to receive longest sentence in Jan. 6 police assault; Mark K. Ponder, 56, was handed a 63-month prison term for attacking police in the Capitol riot," reports on yet another notable sentencing in yet another January 6 riot case.  Here are excerpts:

A District man who assaulted three police officers and shattered a riot shield with a pole was sentenced to 63 months in prison Tuesday, matching the longest sentence handed down to a defendant convicted in the Jan. 6, 2021, Capitol attack.

Mark K. Ponder, 56, admitted to fighting with police in video-recorded confrontations between 2:31 p.m. and 2:48 p.m. that day in the area of the lower west terrace of the Capitol, which was overrun by a violent mob angered by President Donald Trump’s false claims that the 2020 election was stolen.  Ponder pleaded guilty April 22 to one count of assaulting an officer using a dangerous weapon.

“He was leading the charge,” U.S. District Judge Tanya S. Chutkan said, reciting at sentencing how Ponder smashed a thin pole against an officer’s riot shield so hard that the pole broke and the shield shattered, then found a thicker pole, colored red, white and blue, and resumed fighting.  “He wasn’t defending himself or anybody else. He was attempting to injure those officers, and we are lucky [someone] was not killed with the force Mr. Ponder is swinging those poles,” the judge said.

Chutkan in December handed down a similar 63-month sentence to Robert S. Palmer, 54, of Largo, Fla., who joined the front of the mob and hurled a fire extinguisher, plank and pole at police. Like Palmer, Ponder was “part of a group who, when they couldn’t get what they wanted, decided they were going to take it.  And they were going to take it with violence,” Chutkan said, saying they felt entitled “to attack law enforcement officers who were just doing their jobs.”...

Chutkan has emerged as the toughest sentencing judge in Capitol riot cases and exceeded prosecutors’ request to sentence Ponder to five years in prison, the low end of a federal advisory sentencing range of 57 to 71 months, in keeping with a plea deal.  Assistant U.S. Attorney Jocelyn P. Bond said a five-year term was justified by the seriousness of the offense as well as by Ponder’s return to the scene at 4 and 5 p.m. after he was tackled, handcuffed and then told to leave by police because officers needed to reinforce other parts of the Capitol complex....

Former U.S. Capitol Police sergeant Aquilino Gonell gave an in-person victim impact statement, telling the court as one of the officers struck by Ponder that there is “no doubt” he understood he was hitting police officers and “had the will and the intent to continue doing harm.”  The former sergeant said that he took early retirement as a result of the attack, that he was left with mental and physical injuries and that “my family has suffered, emotionally and financially.” Gonell told Chutkan that Ponder’s claim that he got “caught up” in the violence “is BS, and please don’t fall for it.” “He has changed my life,” said Gonell, a 16-year police veteran who served with the U.S. Army in Iraq.

Ponder asked for mercy, saying that while like Palmer he had a criminal history, he was a “changed person for the last 12 years” since his release from prison after convictions for bank and armed robbery. “I never meant for this to happen. I went there with the intention of going on a peaceful protest,” Ponder said. But he said that he “wasn’t thinking” after he was pepper-sprayed by police, and after the tension and anger in the crowd stoked by the former president erupted into “chaos.”...

Defense attorney Joseph R. Conte added that Ponder, a lifelong resident of the Washington area, overcame a crack cocaine addiction and before Jan. 6 had no contact with police since his incarceration. Ponder was the product of a broken home and suffered abuse as a child “as severe as any I’ve seen in my career,” Conte said, to which Chutkan responded, “I don’t disagree.” The judge waived any fine and said she would recommend that Ponder be allowed to serve his sentence near Washington, saying she hoped the defendant “will be able to get mental health treatment and counseling and be able to live the rest of his life without getting into trouble with law enforcement.”

Some of many prior related posts:

July 27, 2022 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Friday, July 22, 2022

Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress?

Regular readers know that I have long been troubled by the use of so-called "acquitted conduct" in federal sentencing, but today's news of Steve Bannon's conviction on two federal criminal charges brings an interesting twist on what conduct a federal judge should or should not consider at sentencing.  First, here are the basic's of Bannon's convictions and coming sentencing via NBC News:

A jury on Friday found former Donald Trump adviser Steve Bannon guilty on two counts of contempt of Congress for blowing off the Jan. 6 select committee.

Bannon's sentencing is scheduled for Oct. 21 when he will face a mandatory minimum prison sentence of 30 days and up to one year behind bars. He could also be fined $100 to $100,000. He is expected to appeal....

Judge Carl Nichols repeatedly refused to delay Bannon's trial despite the defense team's contention that publicity from the Jan. 6 committee hearings would affect the jury pool and their contention that Bannon was barred from testifying due to Trump's purported claims of executive privilege.  A jury was seated on Tuesday morning.

Second, here is the full text (with sentencing terms) of the federal statute, 2 USC § 192, which served as the foundation for Bannon's convictions:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Third, recall that Bannon was indicted by federal prosecutors back in August 2020 on fraud and money laundering charges, but Prez Trump pardoned Bannon on this last day in office before the case had moved significantly forward.  This Washington Post article made note of notable comments by the federal judge who dismissed the charges following the pardon:  

A federal judge on Monday formally dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to President Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.

U.S. District Judge Analisa Torres, citing examples of other cases being dismissed following a presidential reprieve, granted Bannon’s application — saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the Indictment is the proper course.”...

In her decision Tuesday, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one.  She quoted from a New Jersey court that, in 1833, found that “pardon implies guilt.”

“If there be no guilt, there is no ground for forgiveness. … A party is acquitted on the ground of innocence; he is pardoned through favor,” it says, according to Torres’s ruling.

Putting all these pieces together leads me to the question in the title of this post, namely whether folks think it would be proper (perhaps even obligatory) for Judge Carl Nichols to consider and give significant attention to the prior (and now pardoned) allegations of fraud involving Bannon. 

Of course, 18 USC § 3553(a)(1), calls upon a court at sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  The past (alleged and pardoned) fraud conduct certain has part of Bannon's history and characteristics, and a pardon is arguably the antithesis of an exoneration and does not undercut historic jury trial rights like the use of acquitted conduct at sentencing.  Nevertheless, because I think better practice for all purposes is for pardons to be honored and respected through a complete wiping away of all criminal justice sanctions and consequences, I am inclined to want Judge Nichols to not give attention to "pardoned conduct."

July 22, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Thursday, July 21, 2022

One officer involved in George Floyd's killing sentenced to 30 months on federal charges

As reported in this AP article, a "federal judge sentenced former Minneapolis police Officer Thomas Lane to 2 1/2 years in prison Thursday for violating George Floyd’s civil rights, calling Lane’s role in the restraint that killed Floyd 'a very serious offense in which a life was lost' but handing down a sentence well below what prosecutors and Floyd’s family sought." Here is more:

Judge Paul Magnuson’s sentence was just slightly more than the 27 months that Lane’s attorney had requested, while prosecutors had asked for at least 5 1/4 years in prison — the low end of federal guidelines for the charge Lane was convicted on earlier this year.  He said Lane, who faces sentencing in September on state charges in Floyd’s killing, will remain free on bond until he must turn himself Oct. 4.

Lane, who is white, held Floyd’s legs as Officer Derek Chauvin pinned Floyd for nearly 9 1/2 minutes on May 25, 2020. Bystander video of Floyd, who was Black, pleading that he could not breathe sparked protests in Minneapolis and around the world in a reckoning over racial injustice over policing. Two other officers, J. Alexander Kueng and Tou Thao, were also convicted of violating Floyd’s civil rights and will be sentenced later.

Floyd family members had asked Magnuson to give Lane the stiffest sentence possible, with brother Philonise Floyd rejecting the idea that Lane deserved any mercy for asking his colleagues twice if George Floyd should be shifted from his stomach to his side. “Officer Lane did not intervene in one way or another,” he said.

Prosecutor Manda Sertich had also argued for a higher sentence, saying that Lane “chose not to act” when he could have saved a life. “There has to be a line where blindly following a senior officer’s lead, even for a rookie officer, is not acceptable,” she said.

Magnuson told Lane the “fact that you did not get up and remove Mr. Chauvin when Mr. Floyd became unconscious is a violation of the law.” But he also held up 145 letters he said he had received supporting Lane, saying he had never received so many on behalf of a defendant. And he faulted the Minneapolis Police Department for sending Lane with another rookie officer on the call that ended in Floyd’s death.

Gray argued during the trial that Lane “did everything he could possibly do to help George Floyd.” He pointed out that Lane suggested rolling Floyd on his side so he could breathe, but was rebuffed twice by Chauvin. He also noted that Lane performed CPR to try to revive Floyd after the ambulance arrived. Lane testified at trial that he didn’t realize how dire Floyd’s condition was until paramedics turned him over. Sertich countered that his expressions of concern showed he knew Floyd was in distress but “did nothing to give Mr. Floyd the medical aid he knew Mr. Floyd so desperately needed.”

When Lane pleaded guilty in state court in May, Gray said Lane hoped to avoid a long sentence. “He has a newborn baby and did not want to risk not being part of the child’s life,” he said.

July 21, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Wednesday, July 20, 2022

"Federal Sentencing of Illegal Reentry: The Impact of The 2016 Guideline Amendment"

Cover_illegal-reentryThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 38 pages) is summarized on this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

Overview

In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses — §2L1.2 (Unlawfully Entering or Remaining in the United States).  The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades.  This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years.  The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty.  After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Key Findings

  • Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually.  The vast majority of immigration offenders were sentenced under §2L1.2.
     
  • Amendment 802 to the Guidelines Manual ameliorated concerns about the severity of §2L1.2’s enhancements.
    • While variance rates for §2L1.2 offenders remained largely consistent before and after the amendment, courts imposed sentences within the applicable guideline range at a higher rate on average (66.0%) in the five fiscal years after the amendment than the five fiscal years before the amendment (56.6%). Furthermore, the difference between the average guideline minimum and the average sentence imposed decreased from at least three months before the amendment to no more than one month between fiscal years 2017 and 2020, and slightly over two months in fiscal year 2021.
    • These sentencing trends likely are attributable to the decreasing severity of the sentencing enhancements applicable to offenders sentenced under §2L1.2. The number of offenders who received sentencing increases of 12 or more offense levels decreased substantially from 26,094 in the five fiscal years before the amendment to 5,497 in the five fiscal years after the amendment. The average sentencing increase similarly decreased from seven to four offense levels.
       
  • Amendment 802 significantly simplified guideline application and reduced appeals.
    • In the five fiscal years before the amendment, 31,824 offenders sentenced under §2L1.2 (37.1%) received a sentencing enhancement that potentially required courts to analyze predicate offenses using the categorical approach. That number decreased considerably to only 59 offenders (0.1%) in the five fiscal years after the amendment.
    • After Amendment 802, the number of opinions on §2L1.2 appeals decreased by 90 percent, from 239 in fiscal year 2017 to 24 in fiscal year 2021. Notably, this decline occurred even while the number of immigration sentencings rose steadily from fiscal year 2017 to a ten-year high in fiscal year 2019. By contrast, before the amendment, appellate courts issued 249 opinions on §2L1.2 appeals in fiscal year 2016 alone, and two-thirds of the appeals raised application issues relating to the categorical approach.

July 20, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Saturday, July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Friday, July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Wednesday, July 13, 2022

Some more coverage and commentary on what criminalization of abortion can and will mean 

In a few posts here and here not long after the Dobbs decision, I flagged some news pieces and some commentaries discussing how the overruling of Roe and the criminalization of abortion in some states might echo through our criminal justice system.  In recent days, have now seen a few more notable pieces further exploring what abortion criminalization could and will mean:

From The 19th, "Prosecutor explains what preparing for a future of post-Roe abortion cases might look like"

From Bloomberg Law, "Progressives Look to Pardon Power as Abortion Access Fix"

From CNN, "Michigan governor signs executive order to protect abortion providers and patients from extradition"

From Mother Jones, "Why Progressive Prosecutors Won’t Save Us in a Post-Roe World"

From Slate, "Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail"

From The Texan, "Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs"

From the Texas Observer, "Abortion Is (Again) A Criminal-Justice Issue

A few prior related posts:

July 13, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, July 07, 2022

In accord with plea deal, federal judge give (below-guideline) sentence of 21 years to Derek Chauvin for civil rights violations

As reported in this post back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  Today, as reported here by the AP, the judge decides to sentence toward the bottom of this plea bargained range:

A federal judge on Thursday sentenced Derek Chauvin to 21 years in prison for violating George Floyd’s civil rights, telling the former Minneapolis police officer that what he did was “simply wrong” and “offensive.”

U.S. District Judge Paul Magnuson sharply criticized Chauvin for his actions on May 25, 2020, even as he opted for the low end of a sentencing range called for in a plea agreement. Chauvin, who is white, pinned Floyd to the pavement outside a Minneapolis corner store for more than nine minutes as the Black man pleaded, “I can’t breathe,” and became unresponsive....

Magnuson, who earlier this year presided over the federal trial and convictions of three other officers at the scene, blamed Chauvin alone for what happened.... “You absolutely destroyed the lives of three young officers by taking command of the scene,” Magnuson said.

Chauvin’s plea agreement called for a sentence of 20 to 25 years to be served concurrent with a 22 1/2-year sentence for his state conviction of murder and manslaughter charges. Because of differences in parole eligibility in the state and federal systems, it means that Chauvin will serve slightly more time behind bars than he would have on the state sentence alone.

He would be eligible for parole after 15 years on the state sentence, but must serve almost 18 years of his federal time before he could be released.  He will also do his time in the federal system, where he may be safer and may be held under fewer restrictions than in the state system....

Chauvin attorney Eric Nelson had asked for 20 years, arguing that Chauvin was remorseful and would make that clear to the court.  But Chauvin, in brief remarks, made no direct apology or expression of remorse to Floyd’s family. Instead, he told the family that he wishes Floyd’s children “all the best in their life.”...

Prosecutor LeeAnn Bell asked Magnuson to give Chauvin the full 25 years possible in the plea deal, highlighting the “special responsibility” that he had as a police officer to care for the people in his custody....

Floyd’s brother Philonise also asked for the maximum possible sentence, telling Magnuson the Floyd family had “been given a life sentence.” He said afterward that he was upset that Chauvin didn’t get more time behind bars.

Chauvin’s mother, Carolyn Pawlenty, told Magnuson that her son didn’t go to work intending to kill someone. “Many things have been written about him that are totally wrong such as he’s a racist, which he isn’t, that he has no heart,” she said. “I believe it is God’s will for all of us to forgive.”

Chauvin’s guilty plea included an admission that he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.  It also included a count for violating the rights of a Black 14-year-old whom he restrained in an unrelated case in 2017.  John Pope, now 18, told Magnuson that Chauvin “didn’t care about the outcome” of that restraint.  “By the grace of God I lived to see another day,” Pope said. “It will continue to be a part of me for the rest of my life.”

A few prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack"

In this post last month, I noted the AP's interesting accounting of all the federal sentences given to January 6 rioters so far.  Now, to mark the 1.5 year anniversary of the riot, Politico has this lengthy review of all where Jan 6 matters stand.  I recommend the full piece, and here is how it starts and some of its sentencing discussion:

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy.  Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes.  But the most crucial tests of the Justice Department’s work are still to come....

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes.  As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration.  That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time.  But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases.  The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

Some of many prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, July 01, 2022

Longest prison sentence yet in Varisity Blues case, 30 months, given to Georgetown tennis coach

It has now been more than three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."  I covered a number of the early and celebrity sentencings closely, but there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation, and today comes this news of the longest prison term imposed on the roughly four dozen defendants sentenced in this high-profile scandal:

Gordon "Gordie" Ernst, a Rhode Island tennis legend, was sentenced Friday to 30 months in prison — the longest sentence yet for a defendant in the "Operation Varsity Blues" case.

Ernst, 55, previously pleaded guilty to multiple bribery charges after being swept up in the federal investigation into dubious college admission schemes.

Prosecutors for the U.S. Attorney's Office in Massachusetts had argued that Ernst warranted a significantly harsher sentence than others charged in the case, because of his "raw greed" and the "breathtaking scale" of his offenses.

Ernst, in his appeal for leniency, portrayed himself as the product of a difficult upbringing in Cranston, in a family that sometimes struggled to make ends meet but seemed from the outside to be the pinnacle of athletic success.  He alleged that he was routinely beaten by his father, Richard “Dick” Ernst, a legendary coach who died in 2016.

According to prosecutors, Ernst accepted nearly $3.5 million in bribes while working as tennis coach at Georgetown University, in exchange for identifying wealthy high-school students who would not have otherwise qualified for the team as promising tennis recruits.  He collected at least $2 million more than any other coach or administrator charged in Operation Varsity Blues, according to the government's sentencing memo....

Ernst said that since his arrest, he has worked part-time at Hertz cleaning cars — a significant departure from the days when he was brought into the White House to give tennis lessons to the Obama family.  He still coaches tennis on a part-time basis, he said, and volunteered at COVID vaccination sites in Cape Cod.

Federal prosecutors had requested a sentence of four years in prison and two years of supervised release, plus the forfeiture of more than $3.4 million in proceeds.  They noted that unlike parents charged in the scheme, Ernst "cannot claim to have acted out of a desire to help his own children gain admission to college."...

Ernst's attorneys argued that their client should not receive more than one year and a day in prison, given the much lighter sentences given to other defendants, and should not be ordered to pay restitution.  In their sentencing memo, Ernst's legal team described the coach as "a kid from Cranston, Rhode Island whose family at times depended on public assistance," and "flew too close to the sun" when he found himself surrounded by power and wealth.

A few of many prior posts on other defendants in college admissions scandal:

July 1, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Thursday, June 30, 2022

Reviewing and reflecting on what criminalization of abortion could and will mean

In this recent post, I flagged some news articles discussing how the overruling of Roe allowing for the broad criminalization of abortion has brought attention to whether, when and how prosecutors might charge persons for abortion-related activities.  I have now seen a few more recent pieces exploring more broadly what abortion criminalization could and will mean:

From the Atlantic, "Roe Is the New Prohibition: The pro-life movement needs to know that such culture wars result not in outright victory for one side but in reaction and compromise."

From the New York Times, "In States Banning Abortion, a Growing Rift Over Enforcement: A reluctance by some liberal district attorneys to bring criminal charges against abortion providers is already complicating the legal landscape in some states."

From the New York Times, "When Brazil Banned Abortion Pills, Women Turned to Drug Traffickers: With Roe v. Wade overturned, states banning abortion are looking to prevent the distribution of abortion medication. Brazil shows the possible consequences."

From Salon, "The right's war on abortion will become the new War on Drugs: The drug war has been a colossal, expensive disaster. Now the right can build a police state to pursue a new enemy"

From the Texas Tribune, "Abortion funds languish in legal turmoil, their leaders fearing jail time if they help Texans: It’s unclear whether Texas’ tangled web of abortion laws would make it a crime to pay for a Texan to leave the state to get an abortion, but the threat has compelled the funds to cease services."

A few prior related posts:

June 30, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17)

Tuesday, June 28, 2022

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

June 28, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, June 26, 2022

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

June 26, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1)