Saturday, January 22, 2022

SCOTUS takes up reach of McGirt's limit on state prosecution in "Indian country"

The Supreme Court via this order last night granted cert in one case, Oklahoma v. Castro-Huerta, a criminal case concerning the reach of a notable Court ruling from a few terms ago.  This SCOTUSblog post provides the details and context, and here is an excerpt:

Less than two years ago, the Supreme Court ruled in McGirt v. Oklahoma by a vote of 5-4 that a large portion of eastern Oklahoma, which was reserved for the Creek Nation in the 19th century, remains a reservation for purposes of a federal law that gives the federal government sole power to try certain major crimes committed by “any Indian” in “Indian country.” On Friday, the justices — with Justice Amy Coney Barrett having replaced the late Justice Ruth Bader Ginsburg, who was in the McGirt majority — agreed to consider how broadly McGirt applies, but they declined to reconsider the decision itself, which the state describes as having a “more immediate and destabilizing effect on life in an American State” than any of the court’s other recent decisions.

The justices granted review in the case of Victor Manuel Castro-Huerta, who was convicted of neglecting his five-year-old stepdaughter.  Although Castro-Huerta is not a Native American, his stepdaughter is a member of the Eastern Band of Cherokee Indians, and the Oklahoma Court of Criminal Appeals vacated his conviction because the crime occurred in Indian country.  The decision rested on the court’s conclusion that McGirt applies not only to major crimes committed by Native Americans but also to crimes committed by others in Indian country.

Oklahoma filed more than 30 separate petitions asking the justices to overrule McGirt.  It told the justices that the effects of the decision have been “calamitous and are worsening by the day.”  Thousands of crime victims are now seeking justice from federal and tribal prosecutors, the state wrote, overwhelming those offices and federal district courts and leaving many crimes “uninvestigated and unprosecuted.”...

In a brief order on Friday afternoon, the justices agreed to take up only the first question presented by the state’s petition, relating to the application of McGirt to bar state prosecutions of non-Native defendants who commit crimes against Native Americans in “Indian country.”  The court set the case for argument in its April 2022 argument session, with a decision to follow by summer.

January 22, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Friday, January 14, 2022

Illinois judge decides to acquit teen in sexual assault case to avoid four-year mandatory minimum term

The New York Times has this interesting new article about a troubling example of how mandatory minimum sentences can (and often do) end up distorting the operation of our justices systems.  The full headline of the article provides the essentials: "Judge Tosses Teen’s Sexual Assault Conviction, Drawing Outrage; Drew Clinton, 18, faced four years in prison under Illinois sentencing guidelines. But the judge, Robert Adrian, overturned his conviction this month, saying the sentence was “not just." Here are the details:

Last October, a judge in western Illinois convicted an 18-year-old man of sexually assaulting a 16-year-old girl while she was unconscious at a graduation party.

The man, Drew Clinton, faced a mandatory minimum sentence of four years in prison, but at a hearing earlier this month, Judge Robert Adrian reversed his own decision and threw out the conviction.  The nearly five months Mr. Clinton had served in jail, the judge said, was “plenty of punishment.”

The decision, which was reported by the Herald-Whig of Quincy, Ill., has dismayed organizations that help survivors of sexual assault, the Adams County state’s attorney’s office and the girl who reported the assault, who told a local television station that she was present when Judge Adrian overturned Mr. Clinton’s conviction. “He made me seem like I fought for nothing and that I put my word out there for no reason,” she told WGEM-TV. “I immediately had to leave the courtroom and go to the bathroom. I was crying.”...

Mr. Clinton was charged with criminal sexual assault on June 1, 2021.  The girl reported that he sexually assaulted her after she became intoxicated at a party on May 30, according to court records.  During the bench trial, she testified that she was unconscious and woke up to find a pillow covering her face and Mr. Clinton assaulting her....

Mr. Schnack [a lawyer for Mr. Clinton] argued that mandatory sentences take away a judge’s discretion. “Every individual should be judged by the court in doing its sentence and not by a legislator years and hundreds of miles removed,” he said, according to the transcript.

He also said that prosecutors had not proved their case against Mr. Clinton and that the girl was able to consent.  Mr. Schnack said that she made many decisions that night, including drinking and stripping down to her underwear to go swimming. “They weren’t the best decisions,” he said. “She did know what was going on.”

Judge Adrian said he knew that, by law, Mr. Clinton was supposed to serve time in prison, but in this case, the sentence was unfair, partly because Mr. Clinton turned 18 just two weeks before the party and, until his arrest, had no criminal record.  “That is not just,” Judge Adrian said during the Jan. 3 hearing, according to the transcript. “There is no way for what happened in this case that this teenager should go to the Department of Corrections. I will not do that.”

He said that if he ruled that the sentence was unconstitutional, his decision would be reversed on appeal.  Instead, he said, what he could do was “find that the people failed to prove their case.” Judge Adrian chastised the parents and other adults who he said provided liquor to the teenagers at the party and failed “to exercise their parental responsibilities.”...

Carrie Ward, the chief executive of the Illinois Coalition Against Sexual Assault, said the judge’s comments and his decision to throw out Mr. Clinton’s conviction were “a clean and clear example of victim blaming.” By highlighting the girl’s clothing and chastising the hosts of the party, the judge shifted “100 percent of the blame from the perpetrator, from the actual person who committed the sexual assault, to everyone else, including the victim,” Ms. Ward said.

I am troubled that the judge here felt compelled to nullify guilt because he was unable or unwilling to develop an argument that a four-year prison term would be unjust and possibly illegal. I do not know Illinois law well enough to know if state constitutional jurisprudence or other doctrines could have provided a basis for the judge to rule that he had to be able to give effect to the defendant's youth and other mitigating factors. But if the judge made a compelling case for a more just sentence, perhaps prosecutors would not have appealed or perhaps appellate courts would have embraced the analysis. Instead, we have a case in which a judge seems to want to believe that two legal wrongs make a right.

January 14, 2022 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Compassionate Release and Decarceration in the States"

The title of this post is the title of this notable new paper authored by Renagh O'Leary now on SSRN. Here is its abstract:

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest.  Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration.  Compassionate release early release from prison based on a serious or terminal medical condition"is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states.

So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population.  The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release.  People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release.  They are also the age group most likely to be incarcerated for violent convictions.  This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions.  This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions.  This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

January 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?

The question in the title of this post came to mind when I saw just the latest example of a federal circuit court upholding a lengthy federal sentence based in part on acquitted conduct.  This  latest example was handed down yesterday by a Seventh Circuit panel in US v. McClinton, No. 20-2860 (7th Cir. Jan 12, 2022) (available here), and here are the basics (with cites removed):

After transfer to adult court ([Dayonta] McClinton was three months away from his eighteenth birthday at the time of the robbery), a jury found McClinton guilty of robbing the CVS in violation of 18 U.S.C. § 1951(a); and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The jury found him not guilty of the indicted crimes of robbery of Perry, in violation of 18 U.S.C. § 1951(a), and causing death while using a firearm during and in relation to the robbery of Perry, in violation of 18 U.S.C. § 924(j)(1).  At sentencing, the district court concluded, using a preponderance of the evidence standard, that McClinton was responsible for Perry’s murder.  The district court judge therefore enhanced McClinton’s offense level from 23 to 43, but also varied downward to account for McClinton’s age and the sentences of his co-defendants, ultimately sentencing him to 228 months in prison.....

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”....  Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations....

But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence. Until such time as the Supreme Court alters its holding, we must follow its precedent.  McClinton’s counsel advocated thoroughly by preserving this issue for Supreme Court review....

In this case Perry’s murder clearly occurred in the course of the planned robbery. Dividing up the proceeds of the robbery was part and parcel of the plan to obtain cash and drugs for the perpetrators. The fact that, in order to avoid detection, the group traveled a safe distance away from the CVS and waited a few minutes to divvy up the drugs and cash, does not sever its connection to the crime. It was Perry’s announcement that he intended to keep the stolen drugs for himself that drew McClinton’s ire. And it was owing to the prior decision of McClinton, Perry, and others to arm themselves for the robbery that ensured McClinton had a firearm at the ready to settle the dispute by shooting Perry. There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence.

Because less than 3% of all federal sentences are imposed after trials (the rest are after pleas), and because there many not be split verdicts in all those trials, there may only be a few hundred federal cases each year in which acquitted conduct sentencing is even possibly an issue. But often the stakes in those cases can be high with acquitted conduct pushing up guideline ranges many years or even decades as in this McClinton case.  (The upcoming Elizabeth Holmes case could have a lot turn on acquitted conduct, though I suspect the feds might not press guideline enhancements quite so hard in such a high-profile setting.) 

And, of course, acquitted conduct guideline enhancements have be pushing up federal guideline ranges for 30+ years now.  So, I suspect tens of thousands of years of federal prison time has been imposed based on acquitted conduct.  But I wonder if anyone has tried to do more than this back-of-the-envelope calculation.

January 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6)

Wednesday, January 12, 2022

Split New Jersey Supreme Court rules NJ constitution requires allowing juvenile offenders "to petition for a review of their sentence after they have served two decades in prison"

A helpful reader ensured I did not miss the fascinating New Jersey Supreme Court ruling in NJ v. Comer, A-42-20)(NJ Jan 10, 2022) (available here), regarding limits on extreme juvenile sentencing.  The start of the opinion for the Court provide the context and the essentials of the ruling:

This appeal raises challenging questions about the constitutional limits that apply to sentences for juvenile offenders.

The law recognizes what we all know from life experience -- that children are different from adults.  Children lack maturity, can be impetuous, are more susceptible to pressure from others, and often fail to appreciate the long-term consequences of their actions. Miller v. Alabama, 567 U.S. 460, 477 (2012).  They are also more capable of change than adults. Graham v. Florida, 560 U.S. 48, 68 (2010).  Yet we know as well that some juveniles -- who commit very serious crimes and show no signs of maturity or rehabilitation over time -- should serve lengthy periods of incarceration.

The issue before the Court is how to meld those truths in a way that conforms to the Constitution and contemporary standards of decency.  In other words, how to impose lengthy sentences on juveniles that are not only just but that also account for a simple reality: we cannot predict, at a juvenile’s young age, whether a person can be rehabilitated and when an individual might be fit to reenter society.

The question arises in the context of two juveniles who committed extraordinarily serious crimes for which they received long sentences.  In one case, the juvenile offender, who was convicted of felony murder, will not be released for three decades and cannot be considered for parole throughout that time.  In the other appeal, it will be more than four decades before the 14-yearold offender, convicted of purposeful murder, will first be eligible to be considered for parole.

Both juveniles argue that their sentences violate federal and state constitutional provisions that bar cruel and unusual punishment.  See U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12.  They ask the Court to find that a mandatory sentence of at least 30 years without parole, which N.J.S.A. 2C:11- 3(b)(1) requires, is unconstitutional as applied to juveniles.

We decline to strike that aspect of the homicide statute. But we recognize the serious constitutional issue defendants present under the State Constitution. The Court, in fact, anticipated the question in 2017 and asked the Legislature to consider amending the law to allow juvenile offenders who receive sentences with lengthy periods of parole ineligibility to return to court years later and have their sentences reviewed. State v. Zuber, 227 N.J. 422, 451-53 (2017).

Today, faced with actual challenges that cannot be overlooked, we are obligated to address the constitutional issue the parties present and cannot wait to see whether the Legislature will act, as the State requests. That approach is consistent with the basic roles of the different branches of government.  The Legislature has the responsibility to pass laws that fix the range of punishment for an offense; the Judiciary is responsible to determine whether those statutes are constitutional.  Under settled case law, courts also have the authority to act to protect statutes from being invalidated on constitutional grounds.

Here, the statutory framework for sentencing juveniles, if not addressed, will contravene Article I, Paragraph 12 of the State Constitution.  To remedy the concerns defendants raise and save the statute from constitutional infirmity, we will permit juvenile offenders convicted under the law to petition for a review of their sentence after they have served two decades in prison.  At that time, judges will assess a series of factors the United States Supreme Court has set forth in Miller v. Alabama, which are designed to consider the “mitigating qualities of youth.” 567 U.S. at 476-78 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

We provide for the hearing, rather than strike the homicide statute on constitutional grounds, because we have no doubt the Legislature would want the law to survive. The timing of the hearing is informed by a number of sources, including acts by the Legislature and other officials.

At the hearing, the trial court will assess factors it could not evaluate fully decades before -- namely, whether the juvenile offender still fails to appreciate risks and consequences, and whether he has matured or been rehabilitated.  The court may also consider the juvenile offender’s behavior in prison since the time of the offense, among other relevant evidence.

After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years.  A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief.  On the other hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.

The Appellate Division rejected the juveniles’ constitutional claims. We therefore reverse and remand both matters for resentencing. We express no opinion on the outcome of either hearing.

Three Justices dissented from this holding by the NJ Supreme Court, and the dissenting opinion begins this way:

The majority today holds that the New Jersey Constitution requires a 20- year lookback period for juvenile offenders who were waived to adult court and tried and convicted as adults of homicide offenses.  We acknowledge our colleagues’ view that the New Jersey Constitution permits our intervention here.  But we are not legislators imbued by our Constitution with such authority. In our view, the majority today act “as legislators” instead of as judges. Gregg v. Georgia, 428 U.S. 153, 175 (1976). Thus, we respectfully dissent.

The majority asserts that it is required to act by our Constitution and landmark juvenile sentencing cases from both this Court and the United States Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); State v. Zuber, 227 N.J. 422 (2017).  The cited cases hold that, for the purpose of sentencing, the Constitution requires courts to treat juveniles differently and to consider certain factors before sentencing them to life without parole or its functional equivalent.  We believe that our current sentencing scheme fulfils that constitutional mandate.  Thus, it is not our prerogative to impose an additional restriction on juvenile sentencing.

In our view, a 30-year parole bar for juveniles tried as adults and convicted of homicide conforms with contemporary standards of decency, is not grossly disproportionate as to homicide offenses, and does not go beyond what is necessary to achieve legitimate penological objectives.

Accordingly, we believe that the majority’s imposition of a 20-year lookback period for homicide offenses is a subjective policy decision rather than one that is constitutionally mandated.  As such, it must be left to the Legislature, which could have considered all of the factors the majority has, and some it has not.  Instead, the majority joins a small minority of states with lookback periods imposed by judicial fiat rather than by statute.

January 12, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, January 11, 2022

Still more data linking recent surge in gun sales to recent surge in murders

This new Atlantic piece, authored by Jeff Asher and Rob Arthur, provides yet another set of data points detailing the possible connection between an increase in gun purchases and a consequent increase in murders. The piece's full title summarizes its themes: "The Data Are Pointing to One Major Driver of America’s Murder Spike: A massive increase in gun sales in early 2020 seems to have contributed to the recent rise in homicides." Here are excerpts from the start and end of the piece:

After murders in the United States soared to more than 21,000 in 2020, researchers began searching for a definitive explanation why. Many factors may have contributed, such as a pandemic-driven loss of social programs and societal and policing changes after George Floyd’s murder. But one hypothesis is simpler, and perhaps has significant explanatory power: A massive increase in gun sales in early 2020 led to additional murders.

New data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suggest that that indeed may have been the case. According to the data, newly purchased weapons found their way into crimes much more quickly and often last year than in prior years. That seems to point to a definitive conclusion — that new guns led to more murders — but the data set cannot prove that just yet....

Right now, we know that gun sales rose dramatically starting in March 2020, and that murder—driven by gun murders—increased substantially a few months later. We have strong evidence that more people were carrying guns before murder went up in 2020, and the ATF data tell us that newly purchased firearms were used in more crimes than usual. It stands to reason that new guns helped feed 2020’s murder surge, though the data to confirm this conclusion remain agonizingly out of reach. The data aren’t perfect, but they’re strongly suggestive: More guns are behind America’s murder spike.

A few of many prior related posts:

January 11, 2022 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Saturday, January 08, 2022

"Count the Code: Quantifying Federalization of Criminal Statutes"

SR-count-the-code-charts-page6The title of this post is the title of this fascinating new Heritage Foundation report authored by GianCarlo Canaparo, Patrick McLaughlin, Jonathan Nelson and Liya Palagashvili. Here is the report's summary and "key takeaways":

SUMMARY

The authors have developed an algorithm to quantify the number of statutes within the U.S. Code that create one or more federal crimes.  As of 2019, we found 1,510 statutes that create at least one crime.  This represents an increase of nearly 36 percent relative to the 1,111 statutes that created at least one crime in 1994.  Although the algorithm cannot precisely count discrete crimes within sections, we estimate the number of crimes contained within the Code as of 2019 at 5,199.  These findings support the conclusion that the number of federal crimes has increased, while also bolstering concerns that federal crimes are too diffuse, too numerous, and too vague for the average citizen to know what the law requires.

KEY TAKEAWAYS

  • This study quantifies the number of federal statutes that create a crime and estimates 5,199 federal crimes within the United States Code.
  • From 1994 to 2019, the number of sections that create a federal crime increased 36 percent.
  • Because many of these crimes apply to conduct no rational person would expect to be a crime, the government is potentially turning average Americans into criminals.

This report, and its useful but brief discussion of the "Relationship Between Federalization of Crime and Federal Prisoners" which includes the graphic reprinted above, got me to thinking about how hard it would be to effectively quantify and assess changes in federal sentencing law over the last 35 years since the passage of the Sentencing Reform Act of 1984.  I was thinking about this challenge because, based on a quick read, I cannot quite tell if the algorithm used in this study picked up only federal statutes that created new crimes or also captured statutes that only changed the penalties for existing crimes (which happens fairly often).

Notably, from 1984 through 2009, most new federal sentencing laws enacted by Congress increased statutory penalties (often in complicated ways).  But the 2010 Fair Sentencing Act and the 2018 FIRST STEP Act serve as recent examples lowering statutory penalties (also in complicated ways).  And then, of course, starting in the late 1980s, federal law was significantly shaped by yearly federal sentencing guideline changes, some of which were directed by Congress.  There have been over 800 guideline amendments, some minor (and mandatory before 2005), others major (and advisory after 2005), some even retroactive.  And, thanks to Apprendi-Booker, ACCA interpretations and other jurisprudential messes, the Supreme Court and lower federal courts have been "changing" federal sentencing law in various significant ways almost continuously over this period.

January 8, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Monday, January 03, 2022

Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more

The high-profile fraud trial of Theranos founder Elizabeth Holmes resulting in a mixed verdict, but her conviction on four counts each with 20-year maximums means that she now faces up to eight decades in federal prison. And, as regular readers know, her acquittal/non-conviction on various charges do not preclude the federal judge at sentencing from considering evidence associated with those charges.  This short New York Times piece, headlined "What happens next to Elizabeth Holmes," provides some details about what may lie ahead:

Elizabeth Holmes, the founder of the failed blood testing start-up Theranos, now awaits sentencing after being found guilty of four of 11 charges of fraud on Monday.

Ms. Holmes, 37, left the San Jose, Calif., courtroom through a side door after the verdict was read in the case, which was closely scrutinized as a commentary on Silicon Valley. She was found guilty of three counts of wire fraud and one count of conspiracy to commit wire fraud. She was found not guilty on four other counts. The jury was unable to reach a verdict on three counts, which were set aside for later.

After the verdict was read, defense and prosecution lawyers discussed plans for Ms. Holmes’s sentencing, the status of her probation and the fate of the three hung charges. Judge Edward J. Davila of the Northern District of California, who oversaw the case, said he planned to declare a mistrial on those charges, which the government could choose to retry. The parties agreed that Ms. Holmes would not be taken into custody on Monday.

A sentencing date is expected to be set at a hearing on the three hung charges next week. Ms. Holmes can appeal the conviction, her sentence or both. She will also be interviewed by the U.S. Probation Office as it prepares a pre-sentence report....

Each count of wire fraud carries up to 20 years in prison, though Ms. Holmes is unlikely to receive the maximum sentence because she has no prior convictions, said Neama Rahmani, the president of the West Coast Trial Lawyers and a former federal prosecutor.

But he said her sentence was likely to be on the higher end because of the amount of the money involved. Ms. Holmes raised $945 million for Theranos during the start-up’s lifetime and those investments were ultimately wiped out.

Given the amount of loss and other factors likely to lead to upward guideline adjustment, Holmes is sure to face a very high guideline sentencing range (perhaps a range as high as life imprisonment). But her lack of criminal history and other potential mitigating personal factors leads me to expect her to receive a below-guideline sentence. But exactly what that sentence might be (and what the parties will argue for) will be interesting to following in the months ahead.

January 3, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (11)

Sunday, January 02, 2022

Reviewing federal criminal prosecutions of January 6 rioters one year later

A few weeks ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes for their involvement in the January 6 riot at the US Capitol.  Today I see this lengthy new AP piece, headlined "Capitol rioters’ tears, remorse don’t spare them from jail," providing another overview of the state of federal prosecutions as we approach the one-year anniversary of these high-profile crimes.  Here are excerpts:

Judges are hearing tearful expressions of remorse — and a litany of excuses — from rioters paying a price for joining the Jan. 6 insurrection, even as others try to play down the deadly attack on a seat of American democracy.

The Justice Department’s investigation of the riot has now entered the punishment phase.  So far, 71 people have been sentenced for riot-related crimes.  They include a company CEO, an architect, a retired Air Force lieutenant colonel, a gym owner, a former Houston police officer and a University of Kentucky student.  Many rioters have said they lost jobs and friends after their mob of Donald Trump loyalists disrupted the certification of Joe Biden’s presidential victory.

Fifty-six of the 71 pleaded guilty to a misdemeanor count of parading, demonstrating or picketing in a Capitol building. Most of them were sentenced to home confinement or jail terms measured in weeks or months, according to an Associated Press tally of every sentencing.  But rioters who assaulted police officers have gotten years behind bars.

With hundreds of people charged, the Justice Department has taken heat for not coming down harder on some rioters, and it has failed to charge anyone with sedition or treason despite hints early on in the investigation.  But lower-level cases tend to be easier to prosecute and typically get resolved before more complex ones.

At least 165 people have pleaded guilty so far, mostly to crimes punishable by a maximum sentence of six months.  There are dozens of cases involving more serious offenses still moving through the system.  More than 220 people have been charged with assaulting or impeding law enforcement officers at the Capitol, according to the Justice Department.  Since November, three of them have been sentenced to prison terms ranging from more than three years to just over five years.

The District of Columbia federal court is overloaded with Jan. 6 cases.  More than 700 people have been charged so far and the FBI is still looking for more.  Among the most serious charges are against far-right extremist group members accused of plotting attacks to obstruct Congress from certifying the 2020 presidential election.  Their cases haven’t yet gone to trial.

The rioters’ refrains before the judges are often the same: They were caught up in the moment or just following the crowd into the Capitol. They didn’t see any violence or vandalism.  They thought police were letting them enter the building.  They insist they went there to peacefully protest.

Their excuses often implode in the face of overwhelming evidence.  Thousands of hours of videos from surveillance cameras, mobile phones and police body cameras captured them reveling in the mayhem.  Many boasted about their crimes on social media in the days after the deadly attack....

Eighteen judges, including four nominated by Trump, have sentenced the 71 defendants.  Thirty-one defendants have been sentenced to terms of imprisonment or to jail time already served, including 22 who received sentences of three months or less, according to the AP tally.  An additional 18 defendants have been sentenced to home confinement. The remaining 22 have gotten probation without house arrest.

A seemingly genuine display of contrition before or during a sentencing hearing can help a rioter avoid a jail cell.  The judges often cite remorse as a key factor in deciding sentences.

Some of many prior related posts:

January 2, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Thursday, December 30, 2021

"How the Economic Loss Guideline Lost its Way, and How to Save It"

I have been overdue in blogging about this recent article which shares the title of this post and was published earlier this year in the Ohio State Journal of Criminal Law.  This piece was authored by Barry Boss and Kara Kapp, and it is still very timely as we think about priority concerns for a new US Sentencing Commission (whenever it gets members).  In addition, the enduring issues discussed in this article could soon become a focal point of a very high-profile sentencing if a jury brings back fraud convictions against Elizabeth Holmes.  Here is this article's introduction:

This Article revisits a stubborn problem that has been explored by commentators repeatedly over the past thirty years, but which remains unresolved to this day.  The economic crimes Guideline, Section 2B1.1 of the United States Sentencing Manual, routinely recommends arbitrary, disproportionate, and often draconian sentences to first-time offenders of economic crimes.  These disproportionate sentences are driven primarily by Section 2B1.1’s current loss table, which has an outsized role in determining the length of an economic crime offender’s sentence.  Moreover, this deep flaw in the Guideline’s design has led many judges to lose confidence entirely in the Guideline’s recommended sentences, leading to a wide disparity of sentences issued to similarly situated economic crime offenders across the country.  Accordingly, this Guideline has failed to address the primary problem it was designed to solve — unwarranted disparities among similarly situated offenders.  Worse still, it not only has failed to prevent such unwarranted disparities, its underlying design actively exacerbates them.  In the wake of the United States Sentencing Commission’s recent launch of its Interactive Data Analyzer in June 2020, the authors have identified new evidence that this pernicious problem continues to persist.

In Part I, we review the history and purposes of the Sentencing Guidelines, generally, and the economic crimes Guideline specifically.  In Part II, we explain how the current version of the economic crimes Guideline operates in practice, the extraordinarily high sentences it recommends in high-loss cases, and the resulting overemphasis on loss that overstates offenders’ culpability.  In Part III, we analyze data made available through the Commission’s Interactive Data Analyzer and discuss our findings.  In Part IV, we offer a series of reforms designed to restore the judiciary’s and practitioners’ respect for this Guideline so that it may serve its animating purpose — to reduce unwarranted sentencing disparities among similarly situated offenders

December 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Wednesday, December 29, 2021

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

December 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, December 28, 2021

Signing of NDAA into law brings some (low profile) federal sentencing reform to the military justice system

Who says significant federal sentencing reform cannot makes its way though Congress these days?  As this week proved, as long as a reform involves a relatively small and low-profile part of the federal justice system, and especially if it is part of a must-pass/must-sign National Defense Authorization Act (NDAA), federal sentencing reform can become law without even a peep in the press.  Indeed, I would be entirely unaware that Prez Biden's signing of the NDAA was worthy of this blog post, but for a helpful colleague ensuring I did not miss the sentencing piece of the military justice reform story in this year's NDAA.

Of course, as can be found in various press pieces, there was considerable attention given to one high-profile piece of military justice reform in the NDAA: "Democrats applauded provisions in the bill overhauling how the military justice system handles sexual assault and other related crimes, effectively taking prosecutorial jurisdiction over such crimes out of the hands of military commanders."  But, as this Just Security piece laments, the new law only makes "piecemeal changes" in this arena, because "the FY22 NDAA military justice reform provisions transfer only a narrow class of crimes out of the chain of command and into the hands of military lawyers under their respective service secretaries."  Helpfully, in addition to giving extensive critical attention to the high-profile reforms of the NDAA, this Just Security piece also just summarizes the sentencing story:

Revolutionizes military sentencing. The NDAA mandates that sentencing for all non-capital offenses be conducted by military judges instead of the current practice, which allows for panel (jury) sentencing.  It provides for offense-based sentencing, as opposed to the current unitary model (imposing a single sentence for all offenses) and directs that non-binding sentencing guidelines be created. This sentencing reform is a much-needed step forward, though it leaves in place the only criminal justice system in the United States that tolerates non-unanimous votes to convict, a practice the U.S. Supreme Court found unconstitutional for states last year. 

Because I tend to be a fan of jury sentencing, but this press article from a few months ago, headlined "'Crapshoot' Sentencing by Court-Martial Juries Likely to End, Advocates for New Legislation Say," highlights the disparity problems it seemed to produce in the military system:

Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue. Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act....

Supporters say the revision would make sentences in military trials fairer, as well as more consistent and predictable.  "People convicted of sexual assault, one guy gets five years, the other guy gets no confinement," Don Christensen[, a former Air Force prosecutor and president of Protect Our Defenders,] said. "In drug cases, you'd also see huge disparities with no justification. With shaken baby cases, sentences were all over the place."

Military defendants currently may choose whether a judge or a jury, called a "panel," decides their cases, including sentencing.  Military jurors have little experience, context or guidance when determining sentences, Christensen said.  That is magnified by the fact that under the Uniform Code of Military Justice, jurors' sentences can range from no punishment all the way to lengthy prison terms, he added....

Proposals to end it in the military date to at least 1983. The Pentagon proposed an overhaul in 2016, but the idea was dropped.

Critically, in addition to shifting sentencing from juries to judges, the new NDAA calls for the creation of "sentencing parameters" and "sentencing criteria" to guide military judges with "no fewer than 5 and no more than 12 offense categories."  These new parameters and criteria are to be created by a "Military Sentencing Parameters and Criteria Board" with five members, all judges, within the next two years.  In other words, a brand new set of (more simple) federal sentencing guidelines are due to be created for the military justice system.  All sentencing fans should be sure to keep an eye on this process, and one can hope that it might provide some useful lessons for reform to the civilian federal justice system.

December 28, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, December 27, 2021

Early preview of SCOTUS cases considering criminal convictions for doctors opioid prescribing practices

I briefly noted the interesting federal criminal drug cases that the Supreme Court took up in early November in this post.  With the top-side briefs now being submitted to SCOTUS, this local press article, headlined "U.S. Supreme Court will hear case of Alabama doctor who prescribed powerful opioids," provides a somewhat fuller preview. Here are excerpts:

Justices on the U.S. Supreme Court have agreed to hear the appeal of an Alabama pain doctor convicted of running a pill mill, a case that could change how federal prosecutors handle opioid cases.  A federal judge in 2017 sentenced Dr. Xiulu Ruan of Mobile to 21 years in prison for several charges including drug distribution and money laundering related to operations at Physicians Pain Specialists of Alabama.  Ruan appealed his conviction last year to the 11th U.S. Circuit Court of Appeals but lost.  The U.S. Supreme Court agreed earlier this year to hear Ruan’s appeal.

The doctor claims his prescriptions of fentanyl and other opioids were supposed to help patients with severe pain.  In a brief, his lawyers said physicians should not risk arrest and prosecution for unconventional treatments when other approaches have failed.  In Ruan’s case, he prescribed fentanyl approved for patients with cancer pain to people suffering from back, neck and joint pain, according to the U.S. Department of Justice....

Ruan’s appeal has been consolidated with another case, Dr. Shakeel Kahn, who practiced in Arizona and Wyoming.  Both men were found guilty of violating the federal Controlled Substances Act and said juries were not allowed to consider a “good faith” defense, which is aimed at protecting doctors trying to help patients.  The supreme court could uphold his conviction or send his case back to trial.

Ruan’s criminal trial lasted seven weeks in 2017 and featured testimony from patients who supported the doctor and family members who said loved ones received dangerous doses of addictive painkillers.  Prosecutors acknowledged that many patients received good care at the two clinics, but said some prescriptions fell far outside the norm.  Ruan and another practitioner at the clinic, Dr. John Patrick Couch, were among the nation’s top prescribers of fentanyl painkillers.  Couch was also convicted and sentenced to 20 years in prison.  He has also appealed his case.

In its response, attorneys for the U.S. Department of Justice said Ruan prescribed much higher rates of opioids than other doctors and earned more than $4 million as a result. Ruan and his partner issued almost 300,000 prescriptions for controlled substances, they wrote. Prosecutors said Ruan had deep ties to drug companies that created fentanyl medications. After his conviction, they seized assets that included exotic cars, residential and commercial property....

In his brief, Ruan’s attorney wrote that Physicians Pain Specialists of Alabama did not operate as pill mills. The clinics only accepted patients with insurance, refused cash payment and used diagnostic tools to find the sources of patients’ pain.  Only patients with intractable pain received fentanyl, Ruan testified at his trial. “He also testified that the medication was a ‘lifesaver’ for patients who would otherwise ‘have to go to [the] ER’ during such an episode,” the brief said.

Pain patients have criticized crackdowns on pain clinics and doctors.  Compassion & Choices, an organization that advocates for dying patients, submitted a brief in support of Ruan. “Medical practitioners prescribing opioids to such patients in good faith are not drug pushers under the Act,” according to the Compassion & Choices brief.  “Practitioners thus should not have to suffer the specter of criminal liability simply for treating such patients at such a vulnerable, critical, and private time in their lives.”...

Arguments in Ruan’s case are scheduled for March 1, 2022.

The briefing in Ruan v. US, No. 20-1410, is available at this SCOTUSblog link, and the brief from the defense sets up the issue this way in its Introduction:

To ensure that licensed medical professionals do not risk criminal prosecution and felony conviction based on simple malpractice, nearly all courts, construing the CSA and the implementing regulations, require that the government prove that the physician lacked a good faith basis for her prescription.  See Pet. 4-5, 18-27.  But not the Eleventh Circuit. According to the court of appeals, a doctor may be convicted under the CSA if her prescription fell outside of professional norms — without regard to whether she believed in good faith that the prescription served a bona fide medical purpose.  That outlier position, if sustained, would result in the kind of “sweeping expansion of federal criminal jurisdiction” that this Court has repeatedly condemned. Kelly v. United States, 140 S. Ct. 1565, 1574 (2020) (quoting Cleveland v. United States, 531 U.S. 12, 24 (2000)); see also Bond v. United States, 572 U.S. 844, 862-865 (2014). It would also chill medical progress, disrupt the doctor-patient relationship, and criminalize prescriptions whenever a lay jury is persuaded that the physician exceeded the “usual” practice of medicine.

Though these cases are formally about the standards for criminal liability for these doctors, there are sentencing stories lurking here.  First, of course, are the high sentencing stakes for any doctors found guilty of illegal drug distribution.  Decades-long federal sentences are common — but not at all consistent as Prof Adam M. Gershowitz has detailed — and local press indicates federal prosecutors wanted sentences considerably longer than the two decades given to Drs. Ruan and Couch.  But why might such extreme prison terms be needed, given that, once these doctors lose their prescribing licenses, they are functionally unable to repeat their crimes and their risk of recidivism is very low at their age?  Simply put, some vision of retribution must be driving the severity of the sense, especially since deterrence of doctors is likely achieved by any criminal prosecutions and over-deterrence seems like a real risk here.

In the end, the fact that the sentencing stakes are so high likely helps explain why these cases got the Supreme Court's attention.  And the debate over the whether the law requires proving a lack of good faith would, in a sense, get the the heart of the retributivist question of just how blameworthy these doctors really are.  For all those reasons (and others), when oral argument takes place in a couple months, I will be interested to see if any Justices bring up any of the sentencing issues lurking beneath these cases. 

Prior related post:

December 27, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Friday, December 24, 2021

Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

This extended AP article provide a helpful accounting of what we might now expect in sentencing of former Minneapolis police officer Kim Potter after a jury convicted her yesterday on two counts of manslaughter.  Here are excerpts:

The former suburban Minneapolis police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced in February after a jury convicted her Thursday on two counts of manslaughter.  The most serious charge against Kim Potter — first-degree manslaughter — carries a maximum penalty of 15 years in prison....

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious charge of first-degree manslaughter.  That’s because both of the charges against her stem from one act, with one victim.

The max for that charge is 15 years.  But state sentencing guidelines call for much less.  For someone with no criminal history, like Potter, the guidelines range from just more than six years to about 8 1/2 years, with the presumptive sentence being slightly over seven years.

Prosecutors have said they'd seek a sentence above the guideline range, while the defense said they would seek no prison time.  In order for Judge Regina Chu to issue a sentence that's outside the guideline range, she would first have to find either mitigating or aggravating factors.  Both sides are expected to file written arguments.

Prosecutors say aggravating factors in Potter's case include that she caused a greater-than-normal danger to the safety of other people when she fired into the car, including danger to her fellow officers, to Wright’s passenger and to the couple whose car was struck by Wright’s after the shooting.... Prosecutors also say Potter abused her authority as a police officer.

Defense attorney Paul Engh said the defense would be seeking a “dispositional departure” from sentencing guidelines. Under state statutes, a mitigated dispositional departure occurs when guidelines recommend a prison sentence, but a judge allows the sentence to be “stayed" — meaning the defendant doesn't go to prison....

In arguing that Potter should remain free on bail until she is sentenced, Engh said: "She is amenable to probation. Her remorse and regret for the incident is overwhelming.  She’s not a danger to the public whatsoever.  She’s made all her court appearances.” Chu was unmoved, and Potter was taken into custody after the verdicts were read....

The defense can also make the argument that as a police officer, Potter's confinement would likely be harsher than most because of the need to keep her safe.  The former Minneapolis police officer convicted in George Floyd's death, Derek Chauvin, has been in solitary confinement for that reason....

In determining a final sentence, Chu will consider the arguments made by both sides, as well as victim impact statements.  She has also ordered a pre-sentence investigation of Potter.  And Potter can make a statement at her sentencing hearing — a time when judges are typically looking to see if a person takes responsibility for the crime or shows remorse....

No matter what sentence Potter gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.  That means if Potter is sentenced to the presumptive seven years, she would likely serve about four years and nine months behind bars, and the rest on supervised release.  Once on supervised release, she could be sent back to prison if she violates conditions of his parole.  If she gets the maximum 15 years, she could be behind bars for 10 before being placed on parole.

December 24, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (9)

Tuesday, December 21, 2021

A deep dive into extreme sentences in the Pelican State

61bbccc672eb3.imageThe Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

December 21, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

Thursday, December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Though guidelines recommend federal LWOP sentence for Derek Chauvin, plea deal provides for concurrent sentence between 20 and 25 years

I just got a chance to look at the high-profile federal plea agreement entered yesterday in US District Court in Minnesota in US v ChauvinThis Justice Department press release sets out the basics of the plea and the sentencing particulars:

The Justice Department announced [on December 15] that Derek Chauvin, 45, pleaded guilty in federal court to two violations of a federal civil rights statute.

First, defendant Chauvin pleaded guilty to willfully depriving, while acting under color of law, George Floyd of his constitutional rights, resulting in Mr. Floyd’s bodily injury and death. Defendant Chauvin also agreed that the appropriate sentencing base offense level for this crime is second-degree murder because he used unreasonable and excessive force that resulted in Mr. Floyd’s death, and he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life.

Second, defendant Chauvin pleaded guilty to willfully depriving, while acting under color of law, a then 14-year-old juvenile of his constitutional rights, resulting in the juvenile’s bodily injury....

Defendant Chauvin pleaded guilty [on December 15] before U.S. District Court Senior Judge Paul A. Magnuson.  Defendant Chauvin will be sentenced at a hearing to be scheduled at a later date.  According to the plea agreement, defendant Chauvin faces a sentence of between 20- and 25-years imprisonment.  Under the terms of the plea agreement, defendant Chauvin will serve his sentence in federal custody and will not be eligible to work in any law enforcement capacity following his release.

It is notable, but perhaps unsurprising, that the DOJ press release does not highlight why the terms of Chauvin's plea in fact amount to a pretty good deal given the federal sentencing realities he was facing.  In the wake of his state convictions, Chauvin's federal conviction was a near certainty; as his plea agreement details, here is the likely guideline calculation for Chauvin's offenses: "the defendant's adjusted offense level is 43 and ... [thus] the advisory guideline range is life imprisonment."

Despite the guidelines recommending a federal LWOP sentence, federal prosecutors agreed for Chauvin to a plea deal that binds the federal sentencing judge to these terms (as specified in this Rule 11(c)(1)(C) plea): 

The Court should impose a sentence of imprisonment of no less than 240 months and no greater than 300 months (expected to serve no less than 204 months and no greater than 255 months, assuming all goodtime credit);...

The Court, pursuant to U.S.S.G. § 5G1.3(b)(2), should order that the sentence of imprisonment imposed in this case be served concurrent to the 270-month sentence imposed in State of Minnesota v. Derek Chauvin,No. 27-CR- 20-I2646 (expected to serve approximately 178 months, assuming all good-time credit); and

At sentencing, the Court, pursuant to U.S.S.G. § 5G1.3(b)(1), should adjust the sentence for any period of imprisonment/incarceration already served....

I can understand all sorts of reasons for the feds to accept these plea terms, and the agreement notes "the United States intends to advocate for a sentence of 300 months" and that the "agreed sentence is based on the parties' consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a)."  Still, I thought it worth highlighting that this especially notable case is yet another where it seems everyone agrees that the guidelines do not actually guide toward a proper sentence.

A few prior related posts:

December 16, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Monday, December 13, 2021

Heritage Foundation and NACDL release "Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later"

This NACDL news release discusses a notable new report on a depressingly old problem with federal criminal law (and sentencing).  Here are excerpts from the release, with links from the original:

The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later. The report is co-authored by Zack Smith, Heritage legal fellow, and Nathan Pysno, director of economic crime and procedural justice at NACDL.

This new report — a study of the 114th Congress — revisits a 2010 joint report by The Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which found that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57% lacked an adequate guilty-mind requirement.

The new study finds that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate.

Ensuring an adequate mens rea provision is included in statutes and regulations that create criminal offenses is critical. The average person is likely unaware of the vast majority of these crimes and may have no effective notice whatsoever that his or her conduct may be prohibited. It is difficult to imagine how the average person could be expected to “know” the law when no one, including our lawmakers and the U.S. Department of Justice, knows how many federal crimes are actually on the books.

As explained in this new report’s foreword, co-authored by former Attorney General Edwin Meese III and Global CEO of Fair Trials and former NACDL Executive Director Norman L. Reimer:

“The findings of this new report, Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later, are encouraging, but show that further progress is needed. We hope that Representatives, Senators, their staff members, and anyone else who reads this new report take its suggestions seriously. Fostering awareness of the problem of inadequate criminal intent requirements in criminal laws is the first step toward principled reform. Taking appropriate action is the next step.”...

As set forth in this new report’s conclusion:

“Once again, [The Heritage Foundation and NACDL] urge legislators to seriously consider and to adopt the recommendations made in the report, as well as those in the original report. When Congress makes new criminal laws, it should prioritize clear drafting of new criminal provisions and use standardized mens rea terminology consistently across those new statutes.  Each chamber of Congress should refer statutes that create new crimes to its respective judiciary committee, where those committees should consider the appropriate mens rea, providing for defenses, and opportunities to cure in appropriate circumstances.  Similarly, Congress should consider enacting default mens rea legislation. Finally, Congress should require that the number of federal crimes currently on the books be counted.”

Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later is available at: www.heritage.org/without-intent-revisited and www.nacdl.org/WithoutIntentRevisited.

The 2010 joint report by the Heritage Foundation and NACDL – Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law – is available at: www.heritage.org/crime-and-justice/report/without-intent-how-congress-eroding-the-criminal-intent-requirement and www.nacdl.org/withoutintent.

December 13, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Saturday, December 04, 2021

Fourth Circuit panel finds probation sentence for abusive police officer procedurally and substantively unreasonable

I just saw a notable Fourth Circuit per curiam panel ruling which was handed down on Thanksgiving Eve.  The (unpublished) opinion in US v. George, No. 19-4841 (4th Cir. Nov. 24, 2021) (available here), gets started this way:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory Police Department, of using objectively unreasonable force against a pretrial detainee, Chelsea Doolittle, depriving her of the constitutional right to due process of law, in violation of 18 U.S.C. § 242.  The presentence report calculated an advisory guidelines sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district court sentenced him to a downward variance term of four years’ probation.  The Government appeals, arguing that George’s sentence is procedurally and substantively unreasonable. Because the district court grounded its reasoning for the chosen sentence in conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence as either procedurally or substantively reasonable.  Accordingly, we vacate the sentence and remand to a different judge for resentencing.

Here are some passages toward the end of a fairly lengthy opinion in George:

In its reasoning, the district court relied heavily on its view, counter to the weight of the evidence and George’s conviction, that the incident was “almost accidental.”  Through the prism of that impermissible belief, the district court determined that the Guidelines range, reflecting the appropriate sentence for an officer that willfully deprives someone of their constitutional rights, did not apply to George because he was not in that category of offender.  Other circuits have vacated sentences as substantively unreasonable in instances in which the trial court took an impermissible view of the facts, and that is the predominant reason for our holding as to substantive reasonableness today....

Further, the district court gave excessive weight to its favorable perceptions of George as a former police officer, and in turn the post-conviction consequences for George, dismissing other considerations set forth in the Guidelines.  However, “a defendant’s status as a law enforcement officer is more akin to an aggravating as opposed to a mitigating sentencing factor, as criminal conduct by a police officer constitutes an abuse of public position.”  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000).  Rather than acknowledge an abuse of public trust, the court relied heavily on its positive perception of George as a former law enforcement officer in its discussion of the first and second § 3553(a) factors, failing to significantly weigh the seriousness of the crime.  As to the goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” “afford adequate deterrence”, and “protect the public,” the court spoke first and foremost of the “total life changes to Mr. George,” enumerating collateral consequences, including George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 512.  But such outcomes are common in § 242 cases and do not justify this significant variance to a probationary sentence.  Indeed, “it is not unusual for a public official who is convicted of using his governmental authority to violate a person’s rights to lose his or her job and to be barred from future work in that field.”  Koon, 518 U.S. at 110.  That reasoning does not provide the “significant justification” necessary for such a substantial departure.  Gall, 552 U.S. at 50.

December 4, 2021 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, December 02, 2021

What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?

The big news of the law world yesterday was the Supreme Court hearing oral argument in Dobbs v. Jackson Women’s Health Organization, the abortion case out of Mississippi which is viewed as a vehicle for the Justices to reconsider and potentially overrule abortion rights precedents like Roe and Casey.  Based on press reports, as collected here at How Appealing, it sure sounds like a majority of the Justices are prepared to overrule Roe.  Recalling some headlines revealing how abortion laws and debates can implicate crime and punishment issues, I thought it might be useful to flag some press articles of relatively recent vintage which highlight how the overruling of Roe could become of considerable interest for those who focus on criminal justice matters. 

Interestingly, the law at issue in the Dobbs case, Mississippi's Gestational Age Act, appears to only have "Professional sanctions and civil penalties" as the enforcement tools for seeking "to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation."  However, as highlighted by this cursory and abridged review of some press pieces, criminal law and even extreme punishments can be part of an abortion restriction discourse and may become very dynamic if Supreme Court actually does overturn Roe v. Wade:

From Chicago Tribune from April 2018, "Who would be punished for abortion in a post-Roe America?"

From CNN in May 2019, "Alabama doctors who perform abortions could face up to 99 years in prison -- the same as rapists and murderers"

From Texas Tribune in March 2021, "Another Texas GOP lawmaker is attempting to make abortion punishable by the death penalty"

From Slate in September 2021, "Caught in the Net: Interrogated, examined, blackmailed: how law enforcement treated abortion-seeking women before Roe."

From The Guardian in November 2021, "What will US’s future look like if abortion becomes a crime again?

December 2, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (14)

Tuesday, November 30, 2021

El Chapo's wife sentenced to three years in federal prison (guidelines be damned)

This Vice article provides a thorough accounting of a notable federal sentencing with this rousing start: "Sinaloa Cartel leader Joaquín “El Chapo” Guzmán Loera became infamous for daring jailbreaks in Mexico only to end up serving life in prison in the United States. Now his wife, Emma Coronel Aispuro, has managed to avoid a similar fate."  Here is more from the piece: 

The 32-year-old Coronel was sentenced Tuesday to just three years in prison after pleading guilty earlier this year to charges that she helped her husband run his drug trafficking empire, facilitated one of his prison escapes in Mexico, and violated U.S. sanctions by spending his illicit fortune. She also paid nearly $1.5 million to the U.S. government.

It could have ended much worse for Coronel, who faced up to 14 years for her crimes under federal sentencing guidelines.  Federal prosecutors in Washington, D.C., asked her judge for leniency, calling for her to serve just four years behind bars and fueling speculation that she’d struck a deal to cooperate.

Coronel’s attorneys and federal prosecutors made the case to sentencing Judge Rudolph Contreras that she only played a minimal role in the cartel and that her crimes were committed simply because she was married to El Chapo. “The defendant was not an organizer, leader, boss, or other type of manager,” prosecutor Anthony Nardozzi said. “Rather, she was a cog in a very large wheel of a criminal organization.”

A soft-spoken Coronel addressed the court in Spanish before the judge handed down the sentence, asking for forgiveness and making a plea for leniency so that she could be free to raise her 10-year-old twin daughters, who were fathered by El Chapo....

The light sentence has raised eyebrows among ex-prosecutors who handled similar cases against high-level drug traffickers and their associates.  “Downward departure,” or a sentence below the range called for by federal guidelines, is typically reserved for individuals who agree to assist the government in some capacity, David Weinstein, a former assistant U.S. Attorney in Miami, told VICE News.  “They’re treating her like a cooperator,” said Weinstein, who now works as a defense attorney.  “These are the types of circumstances where people are involved in large-scale drug trafficking conspiracies and are benefiting the kingpin and helping the kingpin. You usually don’t get downward departure unless you’re providing substantial assistance.”

Coronel, who holds dual citizenship in the U.S. and Mexico, was taken into custody by FBI agents on Feb. 22 after arriving at Dulles International Airport near Washington, D.C.  While federal authorities announced that Coronel had been “arrested,” sources familiar with her case told VICE News she was aware of pending charges against her and came to turn herself in.

Coronel has been held since February at a jail in Alexandria, Virginia, and is now expected to be transferred into the federal prison system to serve out her sentence. She will receive credit for time served and could be released in just over two years.

If prosecutors truly believed Coronel had only played a minimal role and was merely El Chapo’s wife, it's unclear why she was even charged in the first place because her prosecution would be a waste of time and resources, according to Bonnie Klapper, a former federal prosecutor in the Eastern District of New York.  Klapper, now in private practice, said Coronel’s sentence “is a very clear demonstration of how prosecutors can manipulate the sentencing guidelines to either punish or reward a defendant.”...

In sentencing Coronel, Judge Contreras noted that putting her behind bars for a long time would do little to dissuade anyone else from joining the Sinaloa Cartel. In fact, he said, there was little indication that prosecuting El Chapo had any impact on the cartel’s operations.  “One can make a plausible argument that even the removal of Guzmán from the conspiracy has not resulted in a reduction of harm to the public,” the judge said. “There appears to be no shortage of replacements to fill the defendant’s slot in the organization.”

Contreras noted Coronel’s “impoverished” upbringing and the involvement of her family members in the drug trade, and indicated that he believed that she was a victim of her circumstances who was very young and impressionable when she married El Chapo. “I hope you raise your twins in a different environment than you’ve experienced to date,” Contreras said in his parting words to Coronel. “Good luck.”

This article is astute to note how this case highlights "manipulation" of the federal sentencing guidelines and sentencing outcomes. Indeed, the Government's sentencing memo in the case showcases how the guidelines can function more like a parlor game than as a steady guide to sensible sentencing.  According to that memo, Coronel's PSR initially "concluded that the Defendant’s applicable Guidelines range in this case was 135 months to 168 months ... [and] neither the Government nor the Defendant objected to this Guidelines calculation."  But, sometime thereafter, the Government decided "that Defendant’s applicable Guidelines range is 57 to 71 months in prison ... [and] Defendant and the Probation Office concur."

In other words, everyone in this case first determined that the guidelines recommended 11+ to 14 years in prison, but then later everyone decided the guidelines recommended less than half that length of time.  And then, guidelines be damned, the government decided to recommend a sentence of 48 months (nine months below the low end of the lower guideline range).  And then Judge Contreras decided that 36 months was a sufficient sentence. 

Of course, one might reasonably expect the guidelines to be a poor "fit" for this kind of unique case with its many unique elements.  But, then again, a quarter century ago in Koon v. US, 518 U.S. 81 (1996), the Supreme Court rightly made this closing observation: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."

November 30, 2021 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Monday, November 29, 2021

Could a SCOTUS Second Amendment ruling undercut onerous and disparate criminal enforcement of gun prohibitions?

I noted in this post back in August, as part of a preview of the major pending SCOTUS Second Amendment case, New York State Rifle & Pistol Association Inc. v. Corlett, the considerable racial disparities in modern criminal enforcement of gun prohibitions.  Helping me to detail how actual gun control laws are actually enforced in federal and state criminal justice systems was this interesting amicus brief filed by the Black Attorneys of Legal Aid caucus and lots of NY public defender offices.  Notably, some of the themes of this amicus brief have been carried forward by its authors and others via an array of interesting commentary this fall (listed here in chronological order):

Via SCOTUSblog, "We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights."

Via Inquest, "Second Class: For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle.  Now, they have the Supreme Court’s attention."

Via The Nation, "There’s No Second Amendment on the South Side of Chicago: Why public defenders are standing with the New York State Rifle and Pistol Association in the Supreme Court."

Via Slate, "A Criminal Justice Reformer’s Case for Looser Gun Laws: Public defenders have found common cause with the NRA at the Supreme Court."

I recommend all these pieces, which have too many interesting elements to highlight in a single blog post.  I will just here flag a few quotes from the new Slate piece, which is an interview with Sharone Mitchell Jr., the public defender from Chicago who authored the piece in The Nation.  

Our offense is called UUW, unlawful use of a weapon.  And there are different types of UUWs.  But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.   You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago — and you would think that guns only exist in Chicago.  And you would think guns only exist in a small number of communities.  And that’s not correct.  In other areas of the state, that’s just not the way they approach that situation....

We have this assumption that making things a felony disallows people from performing that act.  And I just haven’t been convinced of that.  At this point in Chicago, folks are not waiting for the government to tell them that they can carry.  And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need.  I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally....

If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery.  There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft.  This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem.  In fact, it creates way more problems.

A few prior related posts:

November 29, 2021 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (11)

Wednesday, November 24, 2021

Sentencing basics for defendants convicted of murdering Ahmaud Arbery

This afternoon brought a jury verdict in the closely watched case involving three men accused of murdering Ahmaud Arbery.  This AP story provides the context and the sentencing possibilities and other particulars now to follow:

A nine-count indictment charged all three men with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony, in this case false imprisonment.

Travis McMichael was convicted of all nine charges. Greg McMichael was convicted of all charges except malice murder.  [William] Bryan was convicted of two counts of felony murder, one count of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony.

Malice and felony murder convictions both carry a minimum penalty of life in prison. The judge decides whether that comes with or without the possibility of parole.  Even if the possibility of parole is granted, a person convicted of murder must serve 30 years before becoming eligible. Multiple murder convictions are merged for the purposes of sentencing.

Murder can also be punishable by death in Georgia if the killing meets certain criteria and the prosecutor chooses to seek the death penalty.  Prosecutors in this case did not.

Each count of aggravated assault carries a prison term of at least one year but not more than 20 years. False imprisonment is punishable by a sentence of one to 10 years in prison....

The McMichaels and Bryan still face federal charges. Months before the three stood trial on state murder charges, a federal grand jury in April indicted them on hate crimes charges.  It’s an entirely separate case that’s not affected by the state trial’s outcome.

U.S. District Court Judge Lisa Godbey Wood has scheduled jury selection in the federal trial to start Feb. 7.  All three men are charged with one count of interference with civil rights and attempted kidnapping.  The McMichaels were also charged with using, carrying and brandishing a firearm during a crime of violence.  The federal indictment says the men targeted Arbery because he was Black.

November 24, 2021 in Offense Characteristics, Race, Class, and Gender | Permalink | Comments (14)

Sunday, November 21, 2021

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

November 21, 2021 in Data on sentencing, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, November 19, 2021

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

November 19, 2021 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Wednesday, November 10, 2021

Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another

Two new Politico articles provide updates on the latest sentencing news from the prosecution of persons involved in the January 6 Capitol riot.  Here are links and excerpts:

"N.J. man hit with toughest sentence yet in Jan. 6 attack":

A federal judge on Wednesday imposed the most serious sentence yet in connection with the Jan. 6 Capitol riot, ordering a New Jersey man to serve almost three-and-a-half years in prison for punching a police officer in the face during the melee.

Scott Fairlamb, 44, a former MMA fighter and gym owner, is the first defendant charged with assaulting an officer during the attack to face sentencing. The judge, Royce Lamberth, said he expected Fairlamb’s 41-month sentence would end up lower than others also facing charges for assaulting police that day.

That’s because Fairlamb was the first to plead guilty to such an assault and, despite initially celebrating the attack, has since expressed remorse that both prosecutors and Lamberth himself described as “genuine.”

Some of many prior related posts:

November 10, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 08, 2021

Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?

The question in the title of this post is prompted by this recent AP article, headlined "Prosecutors seek 44 months in 1st sentence for riot violence," previewing a notable sentencing scheduled for this coming Wednesday. Here are the basics:

Federal prosecutors on Wednesday recommended a prison sentence of nearly four years for a New Jersey gym owner who is on track to be the first person sentenced for assaulting a law enforcement officer during the riot at the U.S. Capitol.

Scott Fairlamb’s sentencing, scheduled for next Wednesday, could guide other judges in deciding the appropriate punishment for dozens of other rioters who engaged in violence at the Capitol that day.

Prosecutors said Fairlamb, one of one of the first rioters to breach the Capitol, incited and emboldened other rioters around him with his violent actions....

If U.S. District Judge Royce Lamberth adopts the Justice Department’s recommendation for a 44-month prison term, Fairlamb’s sentence would be the longest for a rioter.  An 8-month prison term is the longest sentence among the nearly two dozen rioters who have been sentenced so far.  A man who posted threats connected to Jan. 6 but didn’t storm the Capitol was sentenced to 14 months in prison.

Defense attorney Harley Breite said during an interview Wednesday that he intends to ask Lamberth to sentence Fairlamb to the time he already has served in jail, allowing for his immediate release.  Fairlamb has been jailed since his Jan. 22 arrest at his home in Stockholm, New Jersey....

Fairlamb, a 44-year-old former mixed martial arts fighter, owned Fairlamb Fit gym in Pompton Lakes, New Jersey.  He is the brother of a Secret Service agent who was assigned to protect former first lady Michelle Obama, according to defense attorney Harley Breite.

Fairlamb picked up a police baton as he joined the mob that broke past a line of police officers and breached the Capitol, according to prosecutors. A video showed him holding the collapsible baton and shouting, “What (do) patriots do? We f——— disarm them and then we storm the f——— Capitol!”  After he left the building, Fairlamb shoved and punched a Metropolitan Police Department officer in the face, an attack captured on video by a bystander.  The officer said he didn’t suffer any physical injuries, according to prosecutors.

Fairlamb pleaded guilty to two counts, obstruction of an official proceeding and assaulting the police officer.  The counts carry a maximum of more than 20 years in prison, but sentencing guidelines calculated by the court’s probation department recommend a term of imprisonment ranging from 41 to 51 months.  Lamberth isn’t bound by any of the recommendations....

Fairlamb’s social media accounts indicated that he subscribed to the QAnon conspiracy theory and promoted a bogus claim that former President Donald Trump would become the first president of “the new Republic” on March 4, prosecutors wrote.  QAnon has centered on the baseless belief that Trump was fighting against a cabal of Satan-worshipping, child sex trafficking cannibals, including “deep state” enemies, prominent Democrats and Hollywood elites.

Some of many prior related posts:

November 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Friday, November 05, 2021

"Specialization in Criminal Courts: Decision Making, Recidivism, and Re-victimization in Domestic Violence Courts in Tennessee"

The title of this post is the title of this new paper now available via SSRN authored by Aria Golestani, Emily Owens and Kerri Raissian. Here is its abstract:

Local governments increasingly rely on “specialized” or “problem solving” courts as a way to improve the provision of criminal justice.  Using administrative data on misdemeanor DV cases between 2000 and 2006, we exploit the arbitrary courtroom assignment of low-income defendants to evaluate the social impact of specialized domestic violence courts in the General Sessions Court of Metropolitan Nashville and Davidson County, Tennessee.  We find that, compared to traditional court, defendants assigned to specialized court are less likely to be convicted, but no more likely to be charged with a future crime 1 to 3 years later.  This offender-focused measure of recidivism masks a potentially important increase in safety.  Police records suggest that victims in cases assigned to specialized court are less likely to be involved in a future domestic incident.  Conditional on future police involvement, these same victims appear to be more willing to cooperate with police and prosecutors.

November 5, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, October 28, 2021

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

  • investigations by U.S. attorneys
  • prosecutions and declinations
  • convictions and acquittals
  • sentencing
  • pretrial release
  • detention
  • appeals
  • probation and parole
  • prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Thursday, October 21, 2021

Notable (re)sentencing of another former Minnesota police officer for another notable homicide

Though not anywhere as high-profile as the conviction and sentencing of Derek Chauvin, another Minnesota police officer was just subject to state sentencing (actually a resentencing) for homicide. This local article, headlined "Judge resentences ex-officer Mohamed Noor to almost 5 years on manslaughter count," reports on an interesting sentencing process and outcome. Here are excerpts:

Former Minneapolis police officer Mohamed Noor received a new sentence of 4 3/4 years on Thursday for his manslaughter conviction after the state's high court overturned the more serious murder conviction for the 2017 shooting of an Australian woman who had called to report a possible crime.

Noor, who turned 36 Wednesday, was resentenced by Judge Kathryn Quaintance on second-degree manslaughter because the Minnesota Supreme Court set aside his third-degree murder conviction last month.  The decision vacated a prison term of 12 1/2 years Noor was already serving on the murder count for shooting Justine Ruszczyk Damond.

Quaintance, in sentencing Noor to the high end as suggested by state sentencing guidelines, said she wasn't surprised Noor has been a model prisoner, but he had fired his gun across the nose of his partner, endangering a bicyclist and others in the neighborhood on a summer evening.  "These factors of endangering the public make your crime of manslaughter appropriate for a high end sentence," she said.

Noor has served 29 1/12 months since he entered prison in May 2019.  With credit for time served, Noor would be scheduled for release after serving 2/3 of his sentence, meaning he must serve another 8 1/2 months. He is likely to be released next May.

Assistant Hennepin County Attorney Amy Sweasy read a statement from Maryan Heffernan, the victim's mother, who was watching from Australia.  The family sought the maximum for Noor. "We should expect complete accountability from our public institutions and their staff," Heffernan's statement said.  The longest sentence would send a message to police "that we require respect for their badges," Heffernan's statement said.  "We will be outraged if the court is unwilling to respect the will of the people and demand that justice be heard, be seen and be done."

The victim's fiance Don Damond appeared via Zoom and took a different tact, saying the Supreme Court's decision, "Does not diminish the truth which was uncovered during the trial.  The truth is that Justine should be alive." Damond said his comments should not be construed that he wasn't still grieving, but his departed wife "lived a life of love, she modeled a life of joy for all and she stood for forgiveness."

"Given her example, I want you to know that I forgive you Mohamed," he said. "All I ask is that you use this experience to do good for other people.  Be the example of how to transform beyond adversity.  Be an example of honesty and contrition. This is what Justine would want."

Second-degree manslaughter is punishable by up to 10 years in prison, but state sentencing guidelines recommend a term between about 3 1/3 and 4 3/4 years in prison for defendants with no criminal history, such as Noor.  The presumptive term is four years, according to the guidelines.

In her comments, Sweasy asked for the maximum, noting this will be the only time a police officer will be sentenced for this offense.  "By every measure ... this is worse-than-typical for a second-degree manslaughter case," Sweasy said, adding that Noor wore the badge of Minneapolis police officer, a social contract that provides privilege to use deadly force to protect other civilians.

Noor's attorney, Thomas Plunkett, said Noor was young and had overreacted. "He was operating with the mistaken belief that he needed to protect his partner," Plunkett said, adding that Noor had wanted to make the world better and chose a career as a police officer to bridge the gap between the police, the justice system and the Somali-immigrant community.

In prison, he was an award-winning inmate for his commitment and respect to others.  Plunkett requested a sentence at the low end of the guidelines, 3 1/3 years.  There is little doubt that Mr. Noor's time in prison was "more punitive" than anyone could have imagined before the pandemic, Plunkett said.  In Noor's brief comments, he said he was "deeply grateful" for Damond's forgiveness and "deeply sorry" for the family's loss. Of Damond, Noor said, "I will take his advice and be a unifier."

Plunkett had asked the judge to give Noor credit for time he's already served in prison and to place him on supervised release, which typically requires regular check-ins with the Minnesota Department of Corrections (DOC), regular drug and alcohol testing, and restrictions on certain activities.  It can also include electronic home monitoring.  Violations of such terms can result in a defendant being sent back to prison.

Defendants in Minnesota must serve 2/3 of their prison term before becoming eligible for supervised release.  Noor entered prison on May 2, 2019 and was first sentenced in June 2019.  He originally served his time in administrative segregation at Oak Park Heights prison in Minnesota, but was transferred on July 11, 2019 to facility in North Dakota for his own safety.

October 21, 2021 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (0)

Monday, October 18, 2021

Bureau of Justice Statistics releases 2020 National Crime Victimization Survey data indicating over a 20% decline in violent victimization from 2019 to 2020

Crime data is always complicated, and the pandemic era adds a huge extra dimension to figuring out just what is happening with crime in the US and how policymakers should respond. The latest data report from the Bureau of Justice Statistics on crime victimization in 2020 seems to add another complicated piece to the complicated puzzle. Via an email I received this morning, here is some more interesting data:

Today, the Bureau of Justice Statistics released findings from the 2020 National Crime Victimization Survey (NCVS), which show a 22% decline in the total violent victimization rate from 2019 to 2020. The rate of violent crime dropped from 21.0 to 16.4 victimizations per 1,000 persons age 12 or older.

Violent victimization in the NCVS includes rape or sexual assault, robbery, aggravated assault, and simple assault. It does not include homicide as the survey is based on in-person interviews with persons age 12 or older in a representative sample of households in the United States.

The decrease in violent victimization was driven primarily by a decline in simple and aggravated assault. The rate of simple assault fell from 13.7 to 10.7 victimizations per 1,000 persons age 12 or older from 2019 to 2020, while the rate of aggravated assault decreased from 3.7 to 2.9 victimizations per 1,000. The rate of violent crime, excluding simple assault, declined 23% from 7.3 to 5.6 victimizations per 1,000.

The rates of rape or sexual assault (1.2 victimizations per 1,000 persons age 12 or older) and robbery (1.6 per 1,000) in 2020 were not significantly different from the rates in 2019.

The rate of property crime victimization declined for the second year in a row, from 101.4 to 94.5 victimizations per 1,000 households from 2019 to 2020. The decline in property crime (burglary, residential trespassing, motor vehicle theft, and other types of household theft) during this period was due to decreases in the rates of burglary and trespassing. Burglary declined 19% (from 11.7 to 9.5 per 1,000), and trespassing declined 24% (from 5.5 to 4.1 per 1,000). From 2019 to 2020, there were no statistically significant changes in the rates of motor vehicle theft and other household theft.

The NCVS and FBI Uniform Crime Reporting (UCR) program measure an overlapping, but not identical, set of offenses, which leads to differences in estimates of crime between the two sources.  The NCVS interviews victims, while the UCR collects data on crime recorded by law enforcement agencies. Victims reported about 40% of violent victimizations and 33% of property victimizations to the police in 2020. Restricting the NCVS to violent crime reported to police, and excluding simple assault, offers a comparable measure to the UCR.  From 2019 to 2020, the rate of violent crime, excluding simple assault, that victims reported to police decreased 18%, from 3.4 to 2.8 victimizations per 1,000 persons age 12 or older.  During this same period, the rate of property crime that victims reported to police did not change significantly (31.2 property crimes per 1,000 households reported to law enforcement in 2020).  However, the rate of burglary reported to police by victims declined from 6.0 to 4.2 per 1,000 households from 2019 to 2020.

By comparison, the FBI reported an increase in violent crimes from 2019 to 2020 (3.8 to 4.0 violent crimes per 1,000 persons) and a decrease in property crimes (21.3 to 19.6 per 1,000).  The FBI also reported a decrease in burglary from 2019 to 2020 (3.41 to 3.14 per 1,000 persons).

The BJS report, Criminal Victimization, 2020 (NCJ 301775), was written by BJS statisticians Rachel E. Morgan, Ph.D., and Alexandra Thompson. The report, related documents and additional information about BJS’s statistical publications and programs are available on the BJS website at bjs.ojp.gov.

The accompanying summary report, The National Crime Victimization Survey and Uniform Crime Reporting program: A complementary picture of crime in 2020, was written by BJS statisticians Rachel E. Morgan, Ph.D., and Alexandra Thompson.

BJS also released a third-party report, National Crime Victimization Survey: Assessment of Outlier Weights (NCJ 302186), that was produced by RTI International for BJS under award number 2020-85-CX-K017 and is also available on the BJS website.

October 18, 2021 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Wednesday, October 13, 2021

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

October 13, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Saturday, October 09, 2021

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

October 9, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2)

Friday, October 08, 2021

Council on Criminal Justice presents data on "Homicide Trends: What You Need to Know"

The quoted portion of the title of this post is the title of this helpful new data briefing on modern US homicide trends produced by the Council on Criminal Justice.  Here is how the presentation of data is introduced (with links from the original) along with the key six data observations:

Each fall, the Federal Bureau of Investigation aggregates and distributes annual crime data from law enforcement agencies across the country.  Many agencies now post their own weekly and monthly data online, permitting researchers, including those at the Council on Criminal Justice (CCJ), to analyze and report trends in closer to real time.

On September 27, the FBI released its year-end report for 2020.  The government’s figures largely mirrored what CCJ and Arnold Ventures reported in January based on a sample of 34 cities. Both reports, for instance, indicated that in 2020 homicide increased by nearly 30% over the year before.

This brief summarizes key takeaways based on the newly issued FBI report as well as historical and more recent data....

  1.  Violent crime, particularly homicide, increased in 2020. The increase has slowed in 2021 and levels remain below historical highs.... 
  2.  A greater share of homicides involved firearms in 2020....
  3.  The age of homicide victims and offenders remains relatively stable, although it declined slightly in 2020....
  4.  The percentage of Hispanic victims and offenders has decreased....
  5.  The homicide clearance rate declined significantly in 2020, continuing a downward trend that began in the 1970s....
  6.  The circumstances of homicides have grown increasingly unclear.

October 8, 2021 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Wednesday, October 06, 2021

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Monday, October 04, 2021

Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

The AP has effective coverage of the latest sentencings of January 6 rioters, and they highlight how different judges have different takes on how these unique offenders ought to be punished.

From Friday: "Judge questions whether Jan. 6 rioters are treated unfairly." Excerpts:

Rejecting the recommendation of prosecutors, a federal judge sentenced a Jan. 6 rioter to probation on Friday and suggested that the Justice Department was being too hard on those who broke into the Capitol compared to the people arrested during anti-racism protests following George Floyd’s murder.

U.S. District Court Judge Trevor McFadden questioned why federal prosecutors had not brought more cases against those accused in 2020 summertime protests, reading out statistics on riot cases in the nation’s capital that were not prosecuted.  “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said during Danielle Doyle’s sentencing for entering the Capitol on Jan. 6 with a throng of other rioters.  Prosecutors recommended two months of home confinement for Doyle, who is from Oklahoma.

The statements by McFadden, an appointee of former President Donald Trump, were a major departure from the other federal judges overseeing insurrection cases so far, despite other Trump appointees on the court assigned to the hundreds of cases.... 

The Associated Press analyzed more than 300 criminal cases stemming from the protests incited by Floyd’s murder, showing that many leftist rioters had received substantial sentences, rebutting the argument that pro-Trump defendants were treated more harshly than Black Lives Matter protesters....

By contrast, U.S. District Judge James Boasberg on Friday sentenced another rioter, Andrew Ryan Bennett, to three months of home confinement, accepting the request by prosecutors. Bennett was accused of espousing conspiracy theories about the election and used “pugnacious rhetoric” in posting about his plans to be in Washington. 

From Monday: "Judge slams claims that Jan. 6 rioters are treated unfairly." Excerpts:

A Texas man who joined the mob that stormed the U.S. Capitol on Jan 6. was sentenced Monday to 45 days behind bars even though prosecutors weren’t seeking jail time, after the judge blasted comparisons between the riot that day and the Black Lives Matter protests over racial injustice.

U.S. District Judge Tanya Chutkan called it a false equivalence “to compare the actions of people protesting, mostly peacefully, for civil rights” to the mob that “was trying to overthrow the government.”  She said doing so “ignores the very real danger that the Jan. 6 riots pose to the foundation of our democracy.”...

Chutkan, who was appointed by former President Barack Obama, said she “flatly” disagreed with the suggestion raised by “some people” that the Jan. 6 defendants were being treated unfairly.  In fact, she said she believes those who joined the pro-Trump mob were being treated more leniently than many other defendants.

Some of many prior related posts:

October 4, 2021 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (6)

Tuesday, September 28, 2021

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 — more than a quarter century ago! — sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ushering in decades more disproportionately severe crack sentences and extreme racial inequities in federal cocaine offense punishments.

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, September 23, 2021

NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct

A helpful reader made sure I did not miss this notable unanimous opinion by the Supreme Court of New Jersey in State v. Melvin, NO A-44-19 (N.J. Sept. 23, 2021) (available here).  Sentencing fans and long-time readers should know why I think this ruling is spot-on and today's must-read.  Here is how the opinion gets started:

One of the most important tenets of our criminal justice system is the finality of a jury’s verdict of acquittal. These consolidated appeals test that principle through a common legal issue: whether a trial judge can consider at sentencing a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict.

In State v. Melvin, the jury found Melvin guilty of second-degree unlawful possession of a handgun and, after two trials, not guilty of the most serious charges against him, including first-degree murder and first-degree attempted murder.  At his second sentencing, the trial court -- notwithstanding the jury’s not-guilty verdicts on the murder charges -- determined that the evidence at trial supported the conclusion that Melvin shot the victims.  Citing United States v. Watts, 519 U.S. 148 (1997), the trial judge found that it was within the court’s broad discretion at sentencing to consider all circumstances of the case, including evidence that Melvin was the shooter.  Despite the jury’s verdict, the trial court found that Melvin not only possessed the weapon, but used it to shoot three people.  The trial court sentenced Melvin to a term of sixteen years’ imprisonment with an eight-year period of parole ineligibility.  The Appellate Division affirmed that sentence.

In State v. Paden-Battle, in a trial before the same judge who presided over Melvin’s case, the jury found Paden-Battle guilty of kidnapping, conspiracy to commit kidnapping, and felony murder. The jury acquitted Paden-Battle of the remaining seven counts, including first-degree murder and conspiracy to commit murder.  At sentencing, the trial judge again relied on Watts to make findings of fact, by a preponderance of the evidence, that Paden-Battle, despite having been acquitted of the most serious murder charges, was the mastermind who orchestrated the victim’s murder.  The trial court stated that Paden-Battle falsified her testimony and found that she was the moving force behind the murder and ordered her co-conspirators to act.  The trial court sentenced Paden-Battle to a sixty-year sentence. On appeal, the Appellate Division vacated Paden-Battle’s sentence and remanded the matter for resentencing, holding that the trial court enhanced her sentence based on its belief -- a belief contrary to the jury’s verdict -- that Paden-Battle ordered the execution.

We granted the petitions for certification in both cases and now reverse in Melvin and affirm in Paden-Battle.  Article I, Paragraph 1 of the New Jersey Constitution bestows upon all citizens certain natural and unalienable rights.  From those rights flows the doctrine of fundamental fairness, which “protects against arbitrary and unjust government action.” State v. Njango, 247 N.J. 533, 537 (2021).  For the reasons stated below, we hold today that fundamental fairness prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.

September 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 01, 2021

Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6

This recent AP article, headlined "Records rebut claims of unequal treatment of Jan. 6 rioters," provides a valuable and interesting accounting of some of the federal criminal accountability that has followed various riots in recent times.  Here are excerpts:

An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.

The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more....

To be sure, some defendants have received lenient deals. At least 19 who have been sentenced across the country got no prison time or time served, according to the AP’s review. Many pleaded guilty to lower-level offenses, such as misdemeanor assault, but some were convicted of more serious charges, including civil disorder.

In Portland, Oregon — where demonstrations, many turning violent, occurred nightly for months after a white Minneapolis police officer killed Floyd — about 60 of the roughly 100 cases that were brought have been dismissed, court records show.  Most of those defendants received deferred resolution agreements, under which prosecutors promise to drop charges after a certain amount of time if the defendant stays out of trouble and completes things like community service.  Some Jan. 6 defendants have complained it’s unfair they aren’t getting the same deals.

But President Joe Biden’s Justice Department has continued the vast majority of the racial injustice protest cases brought across the U.S. under Trump and has often pushed for lengthy prison time for people convicted of serious crimes.  Since Biden took office in January, federal prosecutors have brought some new cases stemming from last year’s protests.

Conservatives have sought to equate the attack on the Capitol with the Black Lives Matter protests, accusing Democrats of being hypocrites for not denouncing the violence after Floyd’s death as loudly as the Jan. 6 insurrection.  And some Republicans have seized on the handling of the protest cases in Portland to suggest that the Jan. 6 defendants are being politically persecuted.

That has not been borne out when comparing the sentences that federal judges have given to Jan. 6 defendants and those who are accused of crimes during the protests against police brutality across the country.  Only a handful of the nearly 600 people who’ve been charged in the insurrection have received their punishments so far, and just three people have been sentenced to time behind bars.  The vast majority of the most serious cases — involving those accused of assaulting police officers or conspiring to block the certification of Biden’s victory — remain unresolved.

Some of many prior related posts:

September 1, 2021 in Booker in district courts, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Thursday, August 19, 2021

Federal district judge dismisses illegal reentry prosecution holding "Section 1326 violates the Equal Protection Clause of the Fifth Amendment"

Though not exactly a sentencing ruling, late yesterday US Chief District Judge Miranda Du of Nevada issued a big decision in US v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug 18, 2021) (available here), concerning a statute that is the basis for tens of thousands of federal sentences every year.  Here is the start of the 43-page opinion in Carrillo-Lopez and its substantive conclusions:

On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (“Section 1326”).  Before the Court is Carrillo-Lopez’s motion to dismiss the indictment (the “Motion”) on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).  On January 22, 2021, the Court heard oral argument on the Motion, and on February 2, 2021, the Court held an evidentiary hearing.  Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus — and as further discussed below — the Court will grant the Motion....

Carrillo-Lopez has established, and the government concedes, that the Act of 1929 was motivated by racial animus. The government does not assert the 1952 Congress addressed that history when it reenacted Section 1326.  Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment.  The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.  Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.

In conclusion, the government has failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.  Moreover, the government’s alternative arguments — that a nondiscriminatory motive was “plain” or that subsequent amendments somehow imply the racial taint was cleansed — are not supported by caselaw nor borne out by the evidentiary record. In sum, on the record before the Court, the Court can only conclude that the government has not met its burden.  Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion.

Scott Greenfield has an effective summary of the ruling in this new post at Simple Justice.  He notes that it "seems almost inconceivable that the Ninth Circuit won’t reverse this decision," but also highlights that "Judge Du’s decision makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine."  And here is some effective local media coverage:

This recent Quick Facts report from the US Sentencing Commission indicated that there were over 22,000 illegal reentry sentences imposed in Fiscal Year 2019, and nearly 20,000 such sentences in FY 2020. That means that, on average, in federal courts about 400 of these sentences are being imposed each and every week. Because Judge Du's opinion is not binding on other courts, this new decision will not likely disrupt this case flow dramatically. But I suspect it will be (and maybe already is) getting raised in new filings in district courts around the country.

August 19, 2021 in Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, August 18, 2021

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

Regular readers know I do not blog much these days about federal sentence reasonableness review because there are not that many blogworthy opinions.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and all but a few dozen involve miscalculation of the guideline range.  The government rarely appeals, though it has a much better success rate in the relatively few appeals it brings each year. 

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

August 18, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, August 13, 2021

Notable look at public health impacts of drug-induced homicide laws in rural North Carolina

I just came across this notable new article in the International Journal of Drug Policy by multiple authored titled "Drug induced homicide laws may worsen opioid related harms: An example from rural North Carolina." Here is its abstract:

Drug-induced homicide (DIH) laws typically allow for the prosecution of drug distribution resulting in an overdose fatality as equivalent to homicide or manslaughter. Despite vigorous debate about the appropriateness of DIH laws as a response to overdose, the public health impacts of this increasingly common prosecutorial strategy remain unknown. In this policy analysis, we take up the question of how DIH prosecutions impact local persons and communities through the lens of a high-profile DIH conviction that took place in Haywood County, a rural county located in the Appalachian region of western North Carolina. Describing insights gained from two unrelated but overlapping studies carried out in Haywood County, we identify several plausible mechanisms through which DIH laws may negatively impact public health. Among these are disruptions to the local drug market and deterrence from calling 911 when witnessing an overdose. With the number of DIH prosecutions growing rapidly, more research on the public health impacts of DIH laws is urgently needed. 

A few of many prior related posts:

August 13, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (0)

Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, July 14, 2021

"Criminalizing Migration"

The title of this post is the title of this notable short paper now available via SSRN authored by César Cuauhtémoc García Hernández.  Here is its abstract:

Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity.  Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies.  The presidency of Donald Trump augmented this trend and brought it to public attention.  But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.  Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.

July 14, 2021 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

Friday, July 09, 2021

"Safety, Crisis, and Criminal Law"

The title of this post is the title of this notable new paper authored by Jenny Carroll and now available via SSRN.  Here is the abstract:

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, July 08, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8)

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)