Monday, August 08, 2022

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

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

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

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

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

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

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

Prior related posts:

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

Monday, August 01, 2022

"Sex Exceptionalism in Criminal Law"

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

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

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

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

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

Thursday, July 28, 2022

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

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

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

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

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

Wednesday, July 27, 2022

Another notable lengthy sentence imposed on another Jan 6 rioter

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Friday, July 22, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 21, 2022

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

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

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

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

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

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

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

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

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

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

Wednesday, July 20, 2022

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

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

Overview

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

Key Findings

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

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

Saturday, July 16, 2022

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Friday, July 15, 2022

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

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

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

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

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

Wednesday, July 13, 2022

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Thursday, July 07, 2022

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Friday, July 01, 2022

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

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

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

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

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

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

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

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

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

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

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

July 1, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Thursday, June 30, 2022

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

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

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

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

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

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

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

A few prior related posts:

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

Tuesday, June 28, 2022

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, June 26, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Saturday, June 25, 2022

A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal

The modern progressive prosecutor movement had already in recent years brought heightened attention to prosecutorial policies and practices.  The Supreme Court's ruling in Dobbs overruling Roe and allowing for the broad criminalization of abortion has, unsurprisingly, brought even more attention to whether, when and how prosecutors might seek to charge persons for abortion-related activities.  Here are a few recent news article discussing some of these issues:

From the Fort Worth Star-Telegram, "Tarrant County DA says she will prosecute any legitimate Texas abortion law violations"

From The Hill, "Elected prosecutors vow not to go after women seeking abortions"

From NBC News, "Prosecutors in states where abortion is now illegal could begin building criminal cases against providers"

From STAT News, "HIPAA won’t protect you if prosecutors want your reproductive health records"

A few prior related posts:

UPDATE: An email from the National Association of Criminal Defense Lawyers, pointing to this NACDL webpage, reminded me that the defense bar is also going to have an important role in mapping out future policy and practice when it comes to criminal enforcement of abortion prohibitions. Here is a snippet from the NACDL webpage noting its plans in this legal space:

As a leader in the fight against overcriminalization and mass incarceration, NACDL is committed to providing the defense bar with the tools they need to take on the complex and varied cases arising from the Supreme Court’s decision to overturn Roe v. Wade.  Resources will include legal news, information on in-person and virtual trainings, and court filings focused on the specific issues defenders will encounter in these cases.  These tools support lawyers in their defense of cases ranging from child endangerment to homicide brought against a wide array of individuals, including women charged for their pregnancy outcomes or actions while pregnant, abortion seekers, providers, and those caught up in the wide net of related conspiracy and accomplice statutes.

June 25, 2022 in Offense Characteristics, Who Sentences | Permalink | Comments (1)

Friday, June 24, 2022

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

Prior recent related posts:

June 24, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (6)

SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues

The Supreme Court this morning released its much anticipated opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. June 23, 2022) (available here).   The opinions are 200+ pages long, but these lines from the start of the Court's opinion authored by Justice Alito provides the basics: "We hold that Roe and Casey must be overruled ... [and so] return the issue of abortion to the people’s elected representatives."

Both before and after the Dobbs majority opinion was leaked last month, I spotlighted in a few posts a few issues that would seem to arise from existing state laws poised to criminalize and punish abortions in various ways:

There are, of course, lots of other jurisprudential and policy and political questions outside the criminal justice area that flow from Dobbs and its aftermath.  But I think it is quite important and will be quite legally consequential that most laws seeking to restrict or prohibit abortions will be criminal laws raising all sorts of (obvious and not-so-obvious) enforcement and sentencing issues.

June 24, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (79)

Thursday, June 23, 2022

By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements

The Supreme Court this morning handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. June 23, 2022) (available here). Lots of Justices had lots to say in the first significant Second Amendment ruling in more than a decade:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Here is how Justice Thomas's opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.  In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because Bruen is lengthy, I am going to need some time to see if there could be considerable criminal justice echoes from what the Court has to say here.  But, as highlighted in this prior post, a group of defense attorneys filed an amicus brief in Bruen highlighting that their clients were greatly impacted by NY gun laws and that, in 2020, "Black people made up 18% of New York’s population,[but] accounted for 78% of the state’s felony gun possession cases."   I wonder how many gun defendants, not only in New York but elsewhere, might now have new arguments to make about their prosecution and sentencing.

June 23, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Tuesday, June 21, 2022

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

June 21, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

June 21, 2022 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 13, 2022

Fascinating new AP accounting of all sentences given to January 6 rioters so far

Fittingly, with the House's on-going January 6 committee hearings, the Associated Press has this new article reviewing in some detail the nearly 200 sentences so far given to January 6 riot defendants.  I recommend the piece, and its cool interactive graphics, in full.  Here are excerpts:

As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising from the attack....

[U.S. District Judge Tanya] Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.  Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.

Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.

Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far.  While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.

“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,” he added.

In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol.  Prosecutors did not seek jail time for either, noting their lack of a criminal record. Chutkan sentenced Bissey to 14 days in jail.  A different judge sentenced Bissey’s friend to probation....

But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years [when prosecutors sought more than four], noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.  Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.  “When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”...

Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.

Some of many prior related posts:

June 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (16)

Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Concepcion, two little sentencing cases?

Images (5)The Supreme Court this morning handed down an order list and five new opinions (partially blogged here and here).  Though the Court issued a number of opinions on criminal (or criminal-adjacent) procedural issues, we did not today get a ruling in any of the six notable cases that I flagged in this post last week.  As of this writing, SCOTUS has 24 more argued cases to resolve this Term, and there will be additional opinions released on Wednesday morning.  (If five opinions per day becomes the new normal for the Justices, the Court could wrap the current Term by the end of this month with just two "opinion days" during each of the last two weeks of June.)

Most Court watchers have long expected the "biggest" cases, such as the Second Amendment case and the abortion case (Bruen and Dobbs) to not be released until the very end of the Term.  But two "little" sentencing-related cases are also taking a very long time to come out.  US v. TaylorNo. 20-1459, which concerns the definition of a "crime of violence" for application of a 924(c) sentencing enhancement, was argued more than sixth months ago during the Court's December sitting.  And Concepcion v. USNo. 20-1650, which concerns proper resentencing considerations in a crack offense resentencing under Section 404(b) of the FIRST STEP Act, was argued nearly five months ago during the Court's January sitting.  Only very high-profile cases are still outstanding from the December sitting other than Taylor, and Conception is the only case from the January sitting now still unresolved.

The standard and ready explanation, of course, for why decisions in Taylor and Concepcion may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions.  And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the "standard" ideological lines.  Justice Gorsuch, of course, tends to vote in favor of (non-capital) criminal defendants more than most of his conservative colleagues and Chief Justice Roberts and Justice Kavanaugh also can be somewhat more pro-defendant in some settings.

Notably, the SCOTUSblog accounting of who has written which majority opinions so far indicates that neither Justice Gorsuch nor Justice Kavanaugh has authored a majority opinion from the January sitting; we might reasonably expect (though cannot be certain) that one of those two was tasked with authoring the Court's opinion in Concepcion.  Cases from the December sitting are harder to game out because a few more are still unresolved; but since Justice Alito apparently had Dobbs, Justices Breyer, Kagan, Gorsuch and Kavanaugh are those so far without majority opinions from the December sitting and one of them might reasonably be expected to be authoring the Court's opinion in Taylor.

Of course, this analysis is all just tea-leaf-reading and speculation.  We could get other opinion authors or unanimous opinions or who knows what from the Court (especially given that various statutory construction and sentencing jurisprudence doctrines could be brought to bear in these cases).  But, especially within a Term generating so much news from other cases, I am tempted to start speculating that Taylor and/or Concepcion could prove to be sleeper cases.   (I cannot help but note that 18 years ago around this time, I started speculating about whether Blakely v. Washington might be a brewing blockbuster.  I will be truly shocked if either Taylor or Conception gets anywhere close to the jurisprudential earthquake of Blakely, but I find myself growing ever more eager to see what's what in these sentencing cases.)

Anyone else have speculations or thoughts about these lingering sentencing cases (or any other aspect of the eventful SCOTUS Term now winding down)?

June 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 10, 2022

Intriguing clemency news emerges from January 6 committee's first public hearing

This Politico piece reports on the intriguing clemency-related news that emerged from last night's January 6 committee public hearing. Here is how the piece starts:

Rep. Scott Perry of Pennsylvania, as well as multiple other Republican lawmakers, contacted the White House in the weeks after Jan. 6, 2021, to seek presidential pardons for their roles in attempting to overturn the presidential election results, the Jan. 6 select committee revealed Thursday in its prime-time hearing on the Capitol attack.

“Rep. Scott Perry … has refused to testify here,” Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said as she opened its case to the American public. “As you will see, Representative Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election”

The new details surfaced during the panel’s first public hearing, as the bipartisan committee launched the unveiling of its findings of a yearlong investigation into the insurrection. It’s the first of a string of hearings scheduled in the coming weeks that are set to paint a picture of a carefully planned and orchestrated attack on American democracy.

This news, in addition to leading to speculation about the other members of Congress who sought a pardon from Prez Trump in January 2021, must prompt questions about what crimes these folks thought they committed and exactly what behavior led then to worry about criminal prosecution by the US Department of Justice.

June 10, 2022 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (10)

Tuesday, June 07, 2022

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, June 02, 2022

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

June 2, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, May 27, 2022

Helping to spread a federal sentencing "message" for a "corruption superspreader"

I always find it is interesting when judges in relatively low-profile cases talk about "sending a message" at sentencing, and I suppose I should try to make a habit of helping judges spread the messages they hope to be sending.  To that end, here I will flag this recent sentencing story out of Chicago headlined "‘You were a corruption superspreader’: Judge sentences ex-state Rep. Luis Arroyo to 57 months in prison in bribery case involving sweepstakes machine bill."  Here are excerpts:

Saying he needed to send a message on the cost of public corruption, a federal judge on Wednesday sentenced former state Rep. Luis Arroyo to nearly five years in federal prison for trying to bribe a state senator to help with legislation expanding the shadowy world of sweepstakes gambling machines.

Rejecting a defense plea for probation, U.S. District Judge Steven Seeger railed against Arroyo’s “dirty” conduct, saying in a lengthy speech that he sold out an already corruption-weary public and committed a “frontal assault on the very idea of representative government.”

“You were a corruption superspreader,” Seeger said near the end of a nearly four-hour hearing at the Dirksen U.S. Courthouse.  “The public did not get what they deserved.  They voted for an honest representative, and what they got was a corrupt politician.”

Arroyo’s lawyers had maintained that a prison sentence for the longtime Chicago Democrat would do nothing to stop the state’s seemingly intractable corruption problem and would be akin to “draining Lake Michigan with a spoon.”

But the judge took particular umbrage with attempts to downplay what Arroyo did, and at one point asked defense attorney Michael Gillespie specifically about the spoon comment.  “What does that mean?” the judge asked.  ”What am I supposed to do with that?”  As Gillespie fumbled for an answer, Seeger interrupted in a stern voice: “Maybe judges need a bigger spoon.”

Arroyo, 67, entered a blind guilty plea in November to one count of honest services fraud, a move that came without an agreement with prosecutors on what sentencing recommendations should be made to the judge.  The 57-month term imposed by Seeger was above the four years in prison recommended by prosecutors on Wednesday....

Arroyo resigned his seat shortly after he was arrested in 2019 on the bribery charges. A superseding indictment later added new wire and mail fraud charges against Arroyo and also charged James T. Weiss with bribery, wire fraud, mail fraud and lying to the FBI....

The case centers on the largely uncharted world of sweepstakes machines, sometimes called “gray machines,” for which Arroyo was moonlighting as a lobbyist.  The machines allow customers to put in money, receive a coupon to redeem for merchandise online and then play electronic games like slot machines.... According to the 15-page indictment, Weiss paid bribes to Arroyo beginning in November 2018 in exchange for Arroyo’s promotion of legislation beneficial to Weiss’ company, Collage LLC, which specialized in the sweepstakes machines....

In his remarks, Seeger said it was clear that Arroyo was a devoted family man and “a pillar of his community,” but chastised him repeatedly for trying to downplay the severity of his corrupt acts. The judge also noted that while there was no evidence of any other crimes committed in the wiretapped conversations, Arroyo certainly knew the language of corruption and seemed to be “in familiar territory.”

“I need to make sure that the message gets out that public corruption isn’t worth it,” Seeger said. “For whatever reason, that message isn’t getting through.”

May 27, 2022 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Friday, May 06, 2022

Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized

As mentioned in this post right after the leaked draft SCOTUS opinion suggested Roe v. Wade will soon be overturned, if abortion issues are returned entirely to elected officials, a lot more abortion-related activity will be criminalized in a lot more states raising all sorts of new issues regarding sentencing law and policy.  I flagged a few of the sentencing provisions of some of the recently-enacted criminal prohibitions of abortions in a few states in my prior post, and now Politico is on this beat with this new piece fully headlined, "Abortion bans and penalties would vary widely by state: The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license."  Here are excerpts:

Abortion bans set to take effect if Roe v. Wade is overturned could mean lengthy prison sentences for people who have an abortion, the physicians who perform them or those who help people access the procedure. The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license.

Even as national Republican leaders, many of whom have worked for decades to outlaw abortion, dismiss fears of prosecutions, state lawmakers have already enacted mandatory minimum sentences that would go into effect if Justice Samuel Alito’s draft opinion is handed down....

[I]n Texas, anyone who performs, induces or attempts an abortion where “an unborn child dies as a result of the offense” is guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine — under the state’s trigger ban.  In Alabama, anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000 under the state’s pre-Roe ban.  And in South Carolina, a person who ends their pregnancy either with a pill or by other means faces up to two years in prison and a fine of up to $1,000 under state law.

Bills moving in some states go even further. Legislation in Louisiana that would classify abortions as homicide and extend legal personhood to fertilized eggs was voted out of committee on Wednesday.  Homicide is punishable in the state by the death penalty or life without the possibility of parole....

And while some states — such as Idaho, Missouri and Kentucky — have legal language saying people who get an abortion can’t be charged, those patients could be forced to testify against their doctor or romantic partner who helped them access the procedure.  “Even if a bill doesn’t allow pregnant people to be charged directly, we’re concerned about the ways increased surveillance could lead to people being criminalized for an abortion or another kind of pregnancy loss,” Farah Diaz-Tello, the senior counsel and legal director of the group If/When/How, told POLITICO.

Notably, this new New York Times article discusses the growing use of "medication abortion" under the headlined "Abortion Pills Stand to Become the Next Battleground in a Post-Roe America." Here is how the lengthy article concludes:

Some abortion rights advocates said that the availability of safe and effective abortion pills has eliminated one of the greatest fears in the years before Roe — but has added a new one.  “One of the sharpest distinctions is really between the idea of hemorrhaging and the idea of handcuffs,” said Kristin Ford, a spokeswoman for NARAL Pro-Choice America.  “In the pre-Roe world, there was a legitimate concern about people bleeding out in back alleys. That’s not the reality we face. What we’re looking at now is a world of criminalization.”

The development of abortion drugs and the eagerness of some to distribute them and of others to prohibit them already has me wondering if we could be on the verge of a whole new frontier for the war on drugs. Remarkable times.

Recent related post:

May 6, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (13)

Thursday, May 05, 2022

Federal judge formally accepts below-guideline sentencing terms of Derek Chauvin's plea deal for civil rights violations

As reported in this post from back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  At the time, the judge deferred acceptance of the plea deal pending preparation of the presentence report.  That report is now in, as this AP piece reports that the plea deal was formally accepted by the court yesterday: 

The judge overseeing the federal civil rights cases of four former Minneapolis police officers in the killing of George Floyd said Wednesday that he has accepted the terms of Derek Chauvin's plea agreement and will sentence him to 20 to 25 years in prison.

Chauvin pleaded guilty December 15 to violating Floyd's civil rights, admitting for the first time that he kept his knee on Floyd's neck — even after he became unresponsive — resulting in the Black man's death on May 25, 2020. The White former officer admitted he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.

Under the plea agreement, which Chauvin signed, both sides agreed Chauvin should face a sentence ranging from 20 to 25 years, with prosecutors saying they would seek 25. He could have faced life in prison on the federal count. With credit for good time in the federal system, he would serve from 17 years to 21 years and three months behind bars.

U.S. District Judge Paul Magnuson deferred accepting the agreement pending the completion of a presentence investigation. He said in a one-page order Wednesday that the report had been issued, so it was now appropriate to accept the deal. He has not set a sentencing date for Chauvin.

Chauvin is already serving a 22 1/2 year sentence for his murder conviction in state court last year, though he is appealing that conviction. He would serve the federal sentence concurrently with the state sentence. The federal plea deal means Chauvin will probably spend more time in prison than he faced under his state sentence. State prisoners in Minnesota typically serve one-third of their sentence on parole, which for him would mean 15 years in prison.

I am inclined to predict that Judge Magnuson will give Chauvin the max that this plea deal permits of 25 years, which would likely mean Chauvin will be in the federal pen until the early 2040s. Based on the state murder conviction alone, he would have likely been out by the mid 2030s.

A few prior related posts:

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

Tuesday, May 03, 2022

Without Roe, what does sentencing law and policy look like surrounding criminalized abortions?

Reproductive rights are not my area of specialty.  But my interest in constitutional jurisprudence and the work of the US Supreme Court has me paying close attention to the remarkable news that broke last night regarding a leaked draft Court opinion (per Justice Samuel Alito) stating that "Roe and Casey must be overruled" so as to "return the issue of abortion to the people’s elected representatives."  And, as the title of this post is meant to suggest, if Roe is overruled, returning the issue of abortion to elected officials means that a lot more abortion-related activity will be criminalized in a lot more states.  And, of course, new arenas of criminalization necessarily mean new issues regarding sentencing law and policy.

At the risk of getting too much of a head start on these issues, I took a look at some of the sentencing provisions of what seem to be among the broadest, recently enacted criminal prohibitions of abortions.  For example, Oklahoma last month enacted this abortion criminalization bill, and here are its sentencing elements:

A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed One Hundred Thousand Dollars ($100,000.00), or by confinement in the custody of the Department of Corrections for a term not to exceed ten (10) years, or by such fine and imprisonment.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

Meanwhile, Texas last year passed its "trigger law" to outlaw abortion 30 days after a court ruling allowing such a ban, and here are its key sentencing provisions:

This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted....

An offense under this section is a felony of the second degree [which carries a sentencing range from 2 to 20 years in prison], except that the offense is a felony of the first degree if an unborn child dies as a result of the offense [which carries a sentencing range of 5 to 99 years or life in prison].

Arkansas enacted its Unborn Child Protection Act last year, and its sentencing provisions are very similar to Oklahoma's:

Performing or attempting to perform an abortion is an unclassified felony with a fine not to exceed one hundred thousand dollars ($100,000) or imprisonment not to exceed ten (10) years, or both.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

My goal here is not, with Roe still formally the law of the land, to unpack fully all the criminal law and sentencing policy questions that are sure to follow in the wake of Roe's reversal and existing state interest in criminalizing abortions.  Rather, in the wake of last night's leak, I just wanted to flag that it no longer seems too early to start exploring earnestly just what state sentencing law and policy may soon look like surrounding this potential new frontier of criminalized abortions.

May 3, 2022 in Offender Characteristics, Offense Characteristics | Permalink | Comments (47)

Monday, May 02, 2022

Seriously considering resentencing in high-profile Cleveland corruption case (while seriously enjoying rewatching puppet trial parody)

Article-2089091-115F2B80000005DC-234_468x273Though the initial federal sentencing of former Cleveland area county commissioner Jimmy Dimora took place a decade ago, I still recall that Dimora received one of the longest prison terms ever given for political corruption.  My 2012 post about his sentencing to 28 years in federal prison provides some background on the case, and it notes that his attorneys then argued Dimora should get less prison time due to his ailing physical condition and age.  Fast forward a decade, and this local story highlights that what's old is new again in federal sentencing for Dimora.  The article is headlined "Ex-Cuyahoga County Commissioner Jimmy Dimora’s health is failing; attorney asks for release from prison at re-sentencing," and here are excerpts:

Disgraced former Cuyahoga County Commissioner Jimmy Dimora’s health is failing, and his defense attorney asked a judge to consider releasing him from prison when Dimora is re-sentenced on corruption charges next month. Attorney Philip Kushner urged U.S. District Judge Sara Lioi to have leniency for Dimora, according to a court filing last week. Lioi must re-sentence Dimora after the judge overturned convictions on two of Dimora’s 32 charges in one of the largest corruption cases in Ohio history.

Dimora, who will turn 67 in June, has a long list of medical issues that Kushner said should result in Lioi giving Dimora significantly less prison time than the original 28-year sentence. He was convicted of engineering a pay-to-play scandal that led to an overhaul of county government in 2012. “During his 10 years of incarceration, his health has deteriorated,” Kushner wrote in the filing....

Dimora’s cohort and co-defendant, former county Auditor Frank Russo, died last month. His death came about two years after he was released from prison, in part, because of his failing health and the coronavirus pandemic.

Kushner argued for a significantly lesser sentence or release for Dimora based on his age, health and the steep punishment Lioi doled out in 2012. Dimora, he wrote, suffers from a heart defect, an intestinal disorder and an inner-ear equilibrium disease. He needs knee-replacement surgery. He suffered a stroke in prison, is diabetic and uses a wheelchair, according to the filing. Dimora contracted COVID-19 twice in prison, including once in which he became “very ill,” according to Kushner. Dimora is currently serving time in the Federal Medical Center Devens in Massachusetts, which houses seriously ill inmates.

Kushner also argued that similar felons typically serve far less time, somewhere between 12 and 15 years, not the 28 that Dimora is serving.

The 6th U.S. Circuit Court of Appeals ordered Lioi to re-examine the case in the wake of a 2016 U.S. Supreme Court decision in which the justices clarified the definition of an “official act” taken by a public official in a bribery case. The ruling meant that Lioi’s instructions to the jury were outdated and incorrect.  Lioi in March overturned two convictions that focused on contractor Nicholas Zavarella, who built an outdoor kitchen and retaining wall at Dimora’s home for free....

Federal prosecutors are expected to file their own sentencing memorandum with Lioi in the days before the hearing June 8.

Whether Dimora receives a significantly reduced federal sentence is a serious matter, perhaps even literally deadly serious for him.  But Dimora's name and his high-profile case reminded me of a not-quite-so-serious aspect of his trial.  Specifically, as this 2012 NBC News piece detailed, one news station's local coverage of the Dimora trial itself made national and international news:

It's courtroom drama crossed with "Sesame Street," as a television station barred from using cameras during a high-profile corruption trial covers the highlights with a nightly puppet show. It stars a talking squirrel "reporter" who provides the play-by-play in an exaggerated, "you won't believe this" tone.

"It's a satirical look at the trial and, again, I think we have it appropriately placed at the end of the newscast," WOIO news director Dan Salamone said Thursday. He said the puppets are in addition to the station's regular coverage of the Akron federal trial of ex-Cuyahoga County Commissioner Jimmy Dimora, the longtime Democratic power broker in Cleveland. "It's not intended in any way to replace any of the serious coverage of the trial," Salamone said.

Especially on a Monday afternoon when everyone could surely use a bit of levity, I highly recommend watching at least the first few segments of "The Puppet's Court":

Each of these segments is only about 90 seconds long, though I think there are at least 10 of them if you keep watching. I am so glad they are still on YouTube.

UPDATE FROM JUNE 8, 2022This local article reports on the new federal sentencing for Jimmy Dimora. Here is how it starts:

A federal judge on Wednesday shaved five years off former Cuyahoga County Commissioner Jimmy Dimora’s sentence for engineering a pay-to-play style of government that thrived for years. U.S. District Judge Sara Lioi handed down the new sentence during a two-hour hearing in federal court in Akron.  In 2012, Lioi sentenced Dimora to 28 years in prison.

The new sentence means Dimora’s release date is moved up to 2031. He was scheduled to be released in February 2036, a date that had included a four-year reduction for good behavior behind bars.

May 2, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Wednesday, April 13, 2022

Notable example of federal prosecutors and crime victims advocating for sentences way below applicable mandatory minimums

This lengthy local press piece, headlined "After pleas for leniency, mosque bombers receive 16-, 14-year sentences: Prosecution, defense agreed the two were manipulated by militia ringleader," reports on an interesting federal sentencing that took place yesterday in Minnesota.  Here are some of the details:

Following a rare display of both victims and prosecutors advocating mercy, U.S. District Judge Donovan Frank sentenced two Illinois men Tuesday to 14 and 16 years in federal prison for bombing Bloomington's Dar al-Farooq Islamic Center in 2017.

Frank said the "substantial assistance" of Michael McWhorter, 33, and Joe Morris, 26 — including testifying against Emily Claire Hari, their "White Rabbits" militia leader — permitted him to render penalties that each amounted to less than half of the 35-year statutory minimums in the domestic terror case.

Prosecutors and defense attorneys described McWhorter and Morris as patsies in Hari's terror plot, manipulated to participate in a string of violent crimes that included robbing a Walmart with airsoft guns, a home invasion, attempting to extort the Canadian railroad and an unsuccessful attempt to bomb a women's health clinic.

Acknowledging that they were under Hari's influence, Frank also condemned McWhorter's and Morris' seventh-month crime spree as "contrary to everything America stands for," rejecting the 10-year sentences requested by their defense attorneys. "When all is said and done," Frank said, lesser sentences would not "promote respect for the law."

Frank sentenced Hari to 53 years in prison last year, higher than the mandatory minimum but lower than prosecutors' request for life, for civil rights and hate crime convictions.

The sentencings brought to a close a saga that began four-and-a-half years ago, when a black-powder bomb exploded in Imam Mohamed Omar's office early on Aug. 5, 2017, while several mosque members gathered for morning prayer. Throughout the trial, Dar al-Farooq leaders testified to the horror they continued to feel after that day, worried another attack could be imminent.

Still, in court Tuesday, Muslim, Jewish and Christian faith leaders asked Frank for mercy. Omar, who in Hari's trial described feeling he was in a "nightmare" when the bomb went off, told Frank he'd come with "a message of peace" in the name of "solidarity as a human family" on behalf of Dar al-Farooq. Omar said McWhorter sent him a seven-page letter from jail expressing remorse and explaining how he'd fallen into the "dark web of Hari's manipulation" and described Hari as a "cultish" figure....

McWhorter and Morris pleaded guilty in 2019 to their role in the group known as the "White Rabbits 3 Percent Illinois Patriot Freedom Fighters."  In the trial for Hari — then known as Michael Hari — the two men testified that he took advantage of their financial desperation to recruit them for the attacks. Morris, who described Hari as a father figure, said Hari told him they were taking orders from Steve Bannon and a CIA agent called "Congo Joe" to harass "untouchables."...

The day of the bombing, Hari waited until they'd driven through the night and were an hour away from Bloomington to reveal the plot to bomb the mosque. Neither McWhorter nor Morris knew what a mosque was, according to their lawyers. McWhorter said he feared Hari and Morris would kill him if he didn't go through with the plan. "I bombed a mosque. But it was not by choice," he said. "I feared for my life when I bombed the mosque. I didn't do it out of just pure hatred. I don't have any hate" for Muslims.

For their roles in helping convict Hari, Assistant U.S. Attorney Allison Ethen asked Frank for a 50% reduction from the mandatory minimum sentences for McWhorter and Morris — a request both Ethen and Frank remarked was rare. While they were not the masterminds, Ethen said, the two men still committed grave crimes that cannot be "uncommitted" and a light penalty could send the wrong message.  "We need to make sure this sentence also reaches the Haris of the world," she said. Ethen also said she was representing victims from Illinois who couldn't appear in court to speak for themselves, including "countless women" whose doctor's office became the target of a hate crime.

Frank said he calculated the sentence while balancing the need for deterrence of similar crimes, noting the men participated in "very serious premeditated behavior."

April 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, April 09, 2022

Crooked test taker gets four months in federal prison as Varsity Blues prosecutions conclude

It is now three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."   Though I covered a number of the early and celebrity sentencings, there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.

But, as detailed in this AP article headlined "Test taker gets prison; coach convicted in admissions scam," the Varsity Blues prosecutions are winding down with a final jury conviction and a notable sentencing.  Here are the particulars:

A former Florida prep school administrator was sentenced to federal prison and a decorated water polo coach at the University of Southern California was swiftly convicted by a jury in a busy Friday in Boston federal court in the long running college admissions bribery scandal.

Mark Riddell, who was paid handsomely to take college entrance exams for wealthy students, was handed a four-month prison sentence, ordered to serve two years of supervised release and forfeit nearly $240,000.

Meanwhile, former USC coach Jovan Vavic, who faked the athletic credentials of rich students so they could gain admission, was convicted on all three counts of fraud and bribery he faced after a jury deliberated less than a day following his nearly monthlong trial.

U.S. Attorney for Massachusetts Rachael Rollins said the verdict in Vavic’s trial represents the final conviction in the headline grabbing case dubbed “Operation Varsity Blues.”

The investigation announced in 2019 exposed corruption in the college admissions process at Yale, Stanford, Georgetown and other sought-after schools, and implicated wealthy and connected parents, including actors Felicity Huffman and Lori Loughlin and Loughlin’s fashion designer husband, Mossimo Giannulli....

Vavic, a 60-year-old, who guided USC’s men’s and women’s water polo teams to 16 national championships, strode out of the courtroom Friday with his family, declining to comment on the verdict. Prosecutors said he received about $250,000 in bribes for designating unqualified students as water polo recruits so they could attend the elite Los Angeles school....

In a separate courtroom just minutes after Vavic’s verdict was read, Riddell was contrite as he faced sentencing on fraud and money laundering conspiracy charges.  The Harvard graduate, who emerged as a key figure in the wide-ranging scandal, apologized to the many students that lost out on college opportunities because of his “terrible decision.”  He said he brought shame to his family and pleaded for leniency for cooperating with law enforcement officials and for committing to make amends now and going forward for his actions.

Riddell’s lawyers said he should serve one to two months in prison because he was neither the ringleader of the scheme nor a university insider, like the coaches and college administrators implicated.  They also noted he’s already paid nearly $166,000 toward the forfeiture obligation.

Judge Nathaniel Gorton, however, sided with prosecutors who had argued for the four-month sentence.  He said Riddell played a key role for many years in the scheme by secretly taking the ACT and SAT for students, or correcting their answers.  “And for what?” the judge said.  “You did not need the money. How could you have stooped so low?”

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

April 9, 2022 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3)

Thursday, April 07, 2022

South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review

This local article from South Carolina, headlined "‘Our system is broken.’ SC Supreme Court justice assails death sentence in Upstate case," reports on an interesting ruling from the top court in the Palmetto State. Here are the basics and the context from the press piece:

An associate justice of the South Carolina Supreme Court issued a rare and blunt dissent Wednesday in an Upstate death penalty case about a 1999 convenience store robbery that four of the five justices agreed to uphold.

“In the nearly 13 years I have served on this Court, I have voted to affirm eleven death sentences on direct appeal and have never dissented,” Associate Justice Kaye Hearn wrote in her 14-page dissent. But the spur-of-the moment killing committed by Richard Moore in 1999 during a convenience store robbery in Spartanburg County is so different from the usual brutal premeditated slayings for which South Carolina juries give out the death penalty that condemning Moore to death is disproportional, or so far out of line, as not to be lawful, Hearn wrote.

“The death penalty should be reserved for those who commit the most heinous crimes in our society, and I do not believe Moore’s crimes rise to that level,” Hearn wrote, calling South Carolina’s system “broken.”

In Wednesday’s majority opinion, four Supreme Court justices upheld Moore’s death sentence in a case that centered on the issue of whether the sentence was proportional, or roughly the same as, other death sentences for similar crimes. The majority, in an opinion written by Chief Justice Donald Beatty, wrote that Moore’s crime had the aggravating factors set out in the law — such as killing during an armed robbery — that qualified a person for the death penalty, Moore, now 57, has been on South Carolina’s death row 21 years.

The full ruling in Moore v. Stirling, Opinion No. 28088 (S.C. April 6, 2022), is available at this link.  Here is how the majority opinion starts:

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  In Copeland, the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters.  After review of the record and applicable law and consideration of the parties' arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed.  We conclude, however, that Moore has not established that he is entitled to habeas relief.

And here is how the dissent begins:

This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly. This includes the forty-three individuals who have been executed by the State of South Carolina during this modern era of capital punishment, and all of the thirty-five inmates currently housed on death row who have exhausted their direct appeal.  The State characterizes these statistics — currently, approximately zero for seventy-seven — as proof that our capital sentencing scheme functions as it should.  I write separately to express my view that our system is broken and to disagree with that part of the majority opinion which finds Petitioner Richard Moore's sentence proportionate to his crime.

April 7, 2022 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, March 29, 2022

Another review of varying concerns about sentencing equity for January 6 rioters and others

This new Washington Post article reviews anew the enduring question of whether and how January 6 rioters are getting equitable treatment at sentencing.  The article is fully headlined "Judge: Nonviolent Jan. 6 defendants shouldn’t get ‘serious jail time’: A Trump appointee disputes that Capitol breach cases are unique, stirring a debate over how to hold individuals accountable in mass crime." I recommend the full piece, and here are excerpts:

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett M. Kavanaugh. “I know that the government believes that the January 6 cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor N. McFadden, a 2017 Trump appointee. He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations....

McFadden spoke out Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., who pleaded guilty to misdemeanor trespassing.  Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink....

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden, previously served as federal prosecutors in the District....

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants similar to nonviolent protesters who routinely disrupt congressional hearings or simple trespassers....

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura E. Hill rejected the comparison. “January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 that was not present on the days of the Kavanaugh protests.  The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and congresswomen were not required to evacuate the building. … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.  “When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer.  “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”

“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month.  Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”

Prosecutors say they are trying to treat people fairly based on their individual conduct.  But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

Some of many prior related posts:

March 29, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (7)

Wednesday, March 23, 2022

The Sentencing Project and Fair and Just Prosecution produce "Felony Murder: An On-Ramp for Extreme Sentencing"

The Sentencing Project and Fair and Just Prosecution today released this interesting new report about sentencing in felony murder cases titled "Felony Murder: An On-Ramp for Extreme Sentencing." Here is part of its executive summary:

Murder typically refers to an intentional killing.  But “felony murder” laws hold people like Mendoza liable for murder if they participated in a felony, such as a robbery, that resulted in someone’s death.  These laws impose sentences associated with murder on people who neither intended to kill nor anticipated a death, and even on those who did not participate in the killing.  As such, they violate the principle of proportional sentencing, which is supposed to punish crimes based on their severity.  These excessively punitive outcomes violate widely shared perceptions of justice.  With one in seven people in U.S. prisons serving a life sentence, ending mass incarceration requires bold action to reduce extreme prison terms such as those prescribed for felony murder.

These laws run counter to public safety, fiscal responsibility, and justice.  Although other countries have largely rejected the felony murder doctrine, 48 states, the District of Columbia, and the federal government still use these laws.  The only two states that do not have felony murder laws are Hawaii and Kentucky.  Six other states require some proof of intentionality regarding the killing to consider it murder, though the use of a gun — or mere knowledge of a codefendant’s gun use — satisfies this requirement in some jurisdictions.  In any case, all felony murder laws use the underlying felony to either a) treat as murder a killing that would not have otherwise been considered murder, or b) increase the gradation of murder, such as from second to first degree.

This report evaluates the legal and empirical foundation, and failings, of the felony murder rule, profiles impacted individuals, and highlights recent reform efforts in 10 jurisdictions. Key findings include:

1. Felony murder laws widen the net of extreme sentencing and are counterproductive to public safety.

  • For felony murder convictions for adults, eight states and the federal system mandate LWOP sentences, 15 states mandate LWOP in some cases, and 17 states and Washington, DC make LWOP a sentencing option.  Four states permit or require a virtual life sentence of 50 years or longer for some or all felony murder convictions.
  • In Pennsylvania and Michigan, one quarter of people serving LWOP were convicted of felony murder — over 1,000 people in each state.
  • Felony murder laws have not significantly reduced felonies nor lowered the number of felonies that become deadly.
  • The extreme prison sentences associated with felony murder laws add upward pressure on the entire sentencing structure.
  • Felony murder laws spend taxpayer dollars on incarcerating people who no longer pose a danger to the community and divert resources away from effective investments that promote public safety.
2. Felony murder laws have particularly adverse impacts on people of color, young people, and women.
  • In Pennsylvania in 2020, 80% of imprisoned individuals with a felony murder conviction were people of color and 70% were African American.
  • Felony murder laws ignore the cognitive vulnerabilities of youth and emerging adults by assuming that they recognize the remote consequences of their own actions — and those of others in their group. In Pennsylvania, nearly three-quarters of people serving LWOP for felony murder in 2019 were age 25 or younger at the time of their offense, as were over half of Minnesotans charged with aiding and abetting felony murder in recent years.
  • An exploratory survey in California found that 72% of women but only 55% of men serving a life sentence for felony murder were not the perpetrators of the homicide.  The California Coalition for Women Prisoners reports that the majority of their members convicted of felony murder were accomplices navigating intimate partner violence at the time of the offense and were criminalized for acts of survival.

March 23, 2022 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (6)

Saturday, March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, March 09, 2022

"Does Mens Rea Matter?"

The title of this post is the title of this fascinating new article now available via SSRN authored by Matthew Mizel, Michael Serota, Jonathan Cantor and Joshua Russell-Fritch. Here is its abstract:

Does mens rea matter to the criminal legal system?  Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute.  We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g).  Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g) — whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories — as a question of fact for which an actor could be held strictly liable.  Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month.

We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion.  At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it.  All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.

March 9, 2022 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, March 08, 2022

With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?

As reported in this AP piece, headlined "1st trial in Capitol riot ends with conviction all counts," we now have  a new conviction in the January 6 riot cases that can perhaps reveal some of the sentencing consequences of going to trial rather than pleading guilty.  Here are the basic details:

A Texas man was convicted on Tuesday of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot.

A jury also convicted Guy Wesley Reffitt of interfering with police officers who were guarding the Capitol on Jan. 6, 2021, and of obstructing justice for threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own. Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He didn’t visibly react to the verdict, but his face was covered by a mask.

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory.  Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building.  Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.  The defense lawyer urged jurors to acquit Reffitt of all charges but one: He said they should convict him of a misdemeanor charge that he entered and remained in a restricted area.

Reffitt faced a total of five counts: obstruction of an official proceeding, being unlawfully present on Capitol grounds while armed with a firearm, transporting firearms during a civil disorder, interfering with law enforcement officers during a civil disorder, and obstruction of justice.

Jurors saw videos that captured the confrontation between a few Capitol police officers and a mob of people, including Reffitt, who approached them on the west side of the Capitol. Reffitt was armed with a Smith & Wesson pistol in a holster on his waist, carrying zip-tie handcuffs and wearing body armor and a helmet equipped with a video camera when he advanced on police, according to prosecutors. He retreated after an officer pepper sprayed him in the face, but he waved on other rioters who ultimately breached the building, prosecutors said.

Before the crowd advanced, Reffitt used a megaphone to shout at police to step aside and to urge the mob to push forward and overtake officers. Assistant U.S. Attorney Jeffrey Nestler said Reffitt played a leadership role that day. During last Friday’s testimony, prosecutors zoomed in on a video image of Reffitt at the Capitol. FBI Special Agent Laird Hightower said the image shows “a silvery metallic linear object” in a holster protruding from under Reffitt’s jacket as he leaned forward....

Reffitt’s 19-year-old son, Jackson, testified last Thursday that his father threatened him and his sister, then 16, after he drove home from Washington. Reffitt told his children they would be traitors if they reported him to authorities and said “traitors get shot,” Jackson Reffitt recalled. Jackson Reffitt, then 18, said the threat terrified him. His younger sister, Peyton, was listed as a possible government witness but didn’t testify....

More than 750 people have been charged with federal crimes related to the riot.  Over 220 of them have pleaded guilty, mostly to misdemeanors. and over 110 of them have been sentenced. Approximately 90 others have trial dates.

This AP description of Reffitt's behaviors makes him sound like a more serious offender that some of those prosecuted for Jan 6 activities. but also less serious than some others.  I will be interested to see how guideline calculations and sentencing arguments play out for Reffitt in the months ahead.

Some of many prior related posts:

March 8, 2022 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13)

Wednesday, March 02, 2022

Rounding up some reviews of SCOTUS argument in appeals by doctors convicted of opioid drug dealing

As previewed in this prior post, the Supreme Court heard oral argument in two cases on Tuesday morning, Ruan v. United States and Kahn v. United States, which explored the proper legal standards when the federal government looks to prosecute doctors as drug dealers.  I have a chance to listen to part of the argument, and it was both fascinating and frustrating for all sorts of reasons — e.g., the regular use of speeding laws as a hypothetical to explore mens rea standards for a statute in which Congress expressly requires a person to act "knowingly or intentionally" struck me as deeply misguided.  The transcript is available here, and here is a round-up of some review of the argument:

From the AP, "Justices seem to favor docs convicted in pain pill schemes"

From the Courthouse News Service, "Justices grapple with drug charges for pill-mill doctors"

From The Hill, "Supreme Court grapples with drug-dealing convictions for opioid prescribers"

From Reuters, "U.S. Supreme Court mulls 'pill mill' doctors' opioid convictions"

From SCOTUSblog, "In opioids “pill mill” case, justices grapple with physician intent"

From the portion of the oral argument that I was able to listed to, I came away with a sense that the doctor defendants have a reasonable chance of prevailing.  

March 2, 2022 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, March 01, 2022

Why is getting the EQUAL Act through the US Senate proving so challenging?

In this post six weeks ago on MLK day, I asked "How about passing the EQUAL Act so we can be 'free at last' from the crack/powder sentencing disparity?".  I noted in this prior post that the Senate version of the EQUAL Act has garnered seven notable and diverse GOP Senators as co-sponsors, and that this comes after last Fall the Act was passed by the US House by a vote of 361-66 with a majority of GOP Representative voting in favor.  These matters are on my mind particularly today after seeing this new DOJ press release headed "Readout of Justice Department Leadership Meeting with FAMM."  Here is an excerpt (with my emphasis added):

The meeting focused on the positive real-world impact of the finalization of the First Step Act Time Credit Rule, and the recent memorandum by the Office of Legal Counsel (OLC) concerning home confinement, as well as the need for Congress to pass the EQUAL Act.  The department has strongly urged Congress to pass the EQUAL ACT, which would reduce the disparity between crack cocaine and powder cocaine sentences from 18:1 to 1:1.

The Attorney General emphasized that meetings like these are “vitally important” to help department leadership understand how its “policies on paper affect people and their communities.”    During her remarks, Deputy Attorney General Monaco spoke about the importance of implementing the First Step Act and the Time Credit Rule and praised the work of FAMM. She noted that “as of this month, thousands of people are returning to their communities having put in the work to do so.”  

In Associate Attorney General Gupta’s opening remarks, she reiterated the importance of hearing from individuals directly impacted by the criminal justice system and shared that the department provided written testimony to the Senate Judiciary Committee in support of the EQUAL Act in June 2021, saying, “the current sentencing differential between crack and powder cocaine is not based in evidence and yet has caused significant harm in particular to communities of color.  It’s past time to correct this.”

I strongly agree that it is long past time to fix the crack/powder disparity, and every day matters: on average, every single workday, about 5 people — 4 whom are typically black and the other who is most likely Latino — are sentenced based on unjust crack sentencing rules in federal court.  Consequently, I continue to be deeply troubled that, nearly six months after the US House overwhelmingly voted with majorities in both parties in pass a bill to equalize crack and powder penalties, this bipartisan bill remains stuck in neutral in the US Senate.  Sigh.

A few related posts on the EQUAL Act:

March 1, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Monday, February 28, 2022

Previewing the notable criminal drug prosecution cases before SCOTUS

Tomorrow morning the Supreme Court hears oral argument in a couple of the relatively few criminal cases it will be addressing this Term.  Two cases are consolidated for one argument, Ruan v. United States and Kahn v. United States, and here is the question presented:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

The setting for SCOTUS to be addressing this question is quite interesting and still timely, and a number of media outlets have these helpful previews:

From JD Supra, "Pain Management or Pill Mill? Supreme Court to Weigh in on Standards for Prosecutions of Practitioners Prescribing Narcotics"

From Law360, "DOJ Has Few Allies, Many Foes In High Court Opioid Brawl"

From the New York Times, "Were These Doctors Treating Pain or Dealing Drugs?: The Supreme Court will hear from two convicted pill mill doctors in cases that could have significant implications for physicians’ latitude to prescribe addictive painkillers."

From SCOTUSblog, "Amid overdose crisis, court will weigh physician intent in “pill mill” prosecutions and more under the Controlled Substances Act"

From STAT, "Fight over opioid prescribing — and when it turns criminal — heads to Supreme Court"

February 28, 2022 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, February 22, 2022

Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?

The question in the title of this post is prompted by the federal court news this morning that three Georgia men, after having been tried, convicted and sentenced for 1murdering Ahmaud Arbery in state court, were found guilty on all (factually related but legally distinct) federal charges.  This USA Today piece, headlined "Ahmaud Arbery's killers found guilty of federal hate crimes, may face additional life sentence cover the basics:

A jury found three white men guilty of hate crimes and attempted kidnapping for the 2020 murder of Ahmaud Arbery after determining they targeted him because he was Black.

Father and son Gregory and Travis McMichael and their neighbor William "Roddie" Bryan — all already serving life in prison for Arbery's murder — could each face an additional life sentence. A sentencing date was not set.

The jury found each man guilty of one count of interference with rights and attempted kidnapping. The McMichaels were also convicted of using, carrying and brandishing – and in Travis McMichael’s case, firing – a gun during a crime of violence.

Shortly after the verdict was announced, Arbery’s parents emerged from the courthouse holding hands with attorney Ben Crump. They raised their clasped hands to cheers from supporters....  In a statement, Crump said he and Arbery's family "hope and demand that the severity of their crimes are reflected in the sentencing, as well."

Experts have said the federal convictions are not just a symbolic victory but ensure the defendants will serve prison time even if their state convictions are overturned on appeal. The three men were sentenced in January to life in prison after being convicted on the state murder charges; the McMichaels will not have the possibility for parole.

Hate crimes are rarely prosecuted. In Georgia, just two people were convicted of federal hate crimes from 2005 to 2019, according to the Bureau of Justice Statistics. The state did not have its own hate crime legislation until after Arbery's death.

The jury deliberated for about four hours Monday before announcing the verdict, one day before the second anniversary of Arbery's killing....

A plea deal for the McMichaels fell apart days before jury selection began. The McMichaels withdrew their pleas after the judge rejected the initial terms of the deal, under which Travis would have been sentenced to 30 years in federal prison to be served concurrently with his state sentence. Arbery's family strongly opposed the deal in court.

Because the federal judge who rejected the plea deal for the McMichaels, US District Court Judge Lisa Godbey Wood, seemed to indicate that she was troubled that the deal set a 30-year cap on her sentencing authority, I suspect she will now be inclined to give all three defendants life sentences.  In the federal system, of course, there is no parole and so all life sentences are life without parole sentences.  This would be especially significant for William "Roddie" Bryan, who is only serving life with parole as a result of his Georgia state conviction.

I believe that one notable aspect of the now-rejected plea deal was the opportunity for the McMichaels to serve their time in federal prison, which is often viewed as less awful that most state prisons.  I am unsure if these convictions after trial or future sentencing determinations will enable these defendants to serve their time in the federal pen, but I suspect they are still seeking that outcome.

Prior recent related posts:

February 22, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

Sunday, February 20, 2022

"The Structure of Criminal Federalism"

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

Deciding which crimes should “go federal” is a core problem in federal criminal law and policy. Repeated efforts have failed to distinguish “federal” and “local” crimes and crime problems, while federal criminal law’s scope only seems to grow. I argue that federalism explains why identifying federal crimes has proven so elusive.  Overlapping state and federal jurisdiction is not an accident or a federalism failure: it is how the federal criminal system was designed.

The states have the police power, which entrenches them on the front lines of criminal enforcement, broadly providing public safety and addressing most crime incidents. The feds don’t even try to compete; instead, they provide a second layer of enforcement, supplementing and correcting, but not supplanting, the states.  That cooperative, complementary relationship has shaped how both systems operate and strongly restrains the scope of federal criminal enforcement.

Reframed, criminal federalism is alive and well. The Court and scholars should stop trying to separate two systems that naturally work together and rely instead on the structural dynamics I describe to restrain, critique, or adjust how the federal system operates.  And Congress, courts, and executive officials should embrace the federal system’s supplemental nature to ensure it complements, but never supplants, the states.

February 20, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, February 19, 2022

Trial penalties lead to longest (but still not so long) sentences for two Varsity Blues defendants

It has been a while since I have blogged about the Varsity Blues case and the sentences given to the high net-worth individuals who were federally prosecuted (though some of lots and lots of prior blogging can be found below).  However, four months ago I noted in a post the fate of a couple defendants who did not plead guilty and I asked "With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?".  This week we got an answer to that question through two sentencings reported in this Bloomberg piece headlined, "‘Varsity Blues’ Dad Gets Longest Sentence in Scandal Yet."  Here are the basics:

A private equity investor convicted in the “Varsity Blues” college admissions scandal received a 15-months prison sentence, the longest meted out to date.  John B. Wilson was sentenced Wednesday in federal court in Boston after being convicted last year of paying more than $1.2 million to get his three children into elite colleges.  He was also ordered to pay a $200,000 fine and $88,546 in restitution.

Wilson’s sentencing comes about week after former Wynn Resorts Ltd. executive Gamal Abdelaziz was ordered to spend a year and a day in prison.  Before Abdelaziz, the highest sentence handed out in the case had been the nine months given to former Pimco Chief Executive Officer Douglas Hodge.  Unlike Hodge and dozens of others charged in the case, however, Wilson and Abdelaziz chose to contest their charges at trial.  A jury found them guilty in October.

Prosecutors had asked for Wilson to be sentenced to 21 months behind bars, saying he still refused to accept responsibility for his crimes.  Wilson asked for 6 months, saying he deeply regretted his participation in the scheme orchestrated by disgraced college counselor William “Rick” Singer.

Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation, and a quick scan reveals that the vast majority of the defendants who pleaded guilty received sentences of four month or less.  So one might reasonably assert that the choice to exercise their rights to trial contributed to Abdelaziz getting roughly three times, and Wilson getting roughly four times, the prison sentence given to the average Varsity Blues defendant who pleaded guilty.  That can be viewed as a pretty hefty trial penalty. 

And yet, because no mandatory minimum sentencing provisions or big guideline enhancements were in play (and perhaps because of the high-profile nature of these cases), the extent of the "trial penalty" as measured in extra prison time imposed is a lot less for these Varsity Blues defendants than for other federal defendants in a lot of other settings.  A 2013 Human Rights Watch report calculated that "in 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months)."  Three times higher in the federal drug sentencing context can often mean decades of more prison time; three times higher for Abdelaziz and Wilson is a matter of months. 

Still, I cannot help but wonder what the decision to go to trial cost Abdelaziz and Wilson in other respects, e.g., attorneys fees, personal and professional stigma and uncertainty.  Exercising trial rights can be quite costly for defendants even without accounting for the longer (sometimes much longer) sentence that will almost always follow.  

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

February 19, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Friday, February 18, 2022

Minnesota judge, finding mitigating circumstances, imposes below-guideline sentence of 2 years on former officer Kim Potter convicted of manslaughter for killing Daunte Wright

As reported in this AP piece, "Kim Potter, the former suburban Minneapolis police officer who said she confused her handgun for her Taser when she fatally shot Daunte Wright, was sentenced Friday to two years in prison, a penalty below state guidelines after the judge found mitigating factors warranted a lesser sentence." Here is more:

Judge Regina Chu said the lesser sentence was warranted because Potter was “in the line of duty and doing her job in attempting to lawfully arrest Daunte Wright” when she said she mistook her gun for her Taser.  And, Chu said, Potter was trying to protect another officer who could have been dragged and seriously injured if Wright drove away.  “This is this is one of the saddest cases I’ve had on my 20 years on the bench,” said Chu, who also said she received “hundred and hundreds” of letters supporting Potter. “On the one hand, a young man was killed and on the other a respected 26-year veteran police officer, made a tragic error by pulling her hand gun instead of her Taser.”

Wright’s mother, Katie Wright, said after the sentencing that Potter “murdered my son,” adding: “Today the justice system murdered him all over again.” Speaking before the sentence was imposed, the tearful mother said she could never forgive Potter and would only refer to her as “the defendant” because Potter only referred to her 20-year-old son as “the driver” at trial....

Wright family attorney Ben Crump said they don’t understand why such consideration was given to a white officer in the killing of a young Black man when a Black officer, Mohamed Noor, got a longer sentence for the killing of a white woman, Justine Ruszczyk Damond. “What we see today is the legal system in Black and white.”

But the judge said the cases are not the same as other high-profile killings by police. “This is not a cop found guilty of murder for using his knee to pin down a person for 9 1/2 minutes as he gasped for air. This is not a cop found guilty of manslaughter for intentionally drawing his firearm and shooting across his partner and killing an unarmed woman who approached approached his squad,” Chu said. “This is a cop who made a tragic mistake.”

For someone with no criminal history, such as Potter, the state guidelines on first-degree manslaughter range from slightly more than six years to about 8 1/2 years in prison, with the presumptive sentence being just over seven years. Prosecutors said the presumptive sentence was proper, but defense attorneys asked for a sentence below the guidelines, including a sentence of probation only.

I have not previously blogged about the sentencing advocacy in this high-profile case, but this Hill piece usefully links to the written submissions. Here is an excerpt with links:

Prosecutors in a sentencing memo asked the judge to give Potter 86 months, a little more than seven years. First-degree manslaughter has a sentencing of 15 years in Minnesota, but judges can lower the sentence if a person, like Potter, has no criminal history....

Defendants argued in their filing the sentence should be lower due to Potter having no criminal record and her remorsefulness at the situation.  “To impose a prison term here sends the message that if an officer makes a mistake, the Attorney General will be quick to charge (the Complaint was filed within days), and that officer will immediately be ruined by the publicity alone. And a few in the community will try to kill you,” Potter’s lawyers wrote, noting the threats Potter has received. The lawyers believed her house would have been burned down without protection.

My understanding of Minnesota law is that Potter will serve 2/3 of her sentence in prison, so she will be released on parole after serving 16 months.

Prior related post:

February 18, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (2)

Friday, February 11, 2022

"Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis"

The title of this post is the title of this new paper recently posted to SSRN authored by Aliza Cover.  Here is its abstract:

The death penalty is a uniquely severe punishment — the ultimate, irreversible act of violence by state against citizen.  Because “death is different” from all other punishments, the Eighth Amendment restricts its use, mandating that it “be reserved for the worst of crimes and limited in its instances of application.”  Capital punishment statutes must narrow death eligibility, meaningfully differentiating between those “worst” murderers, who may be subject to the death penalty, and the rest of murderers, who may not.

This Article reports the findings of an empirical study designed to evaluate how effectively Idaho’s capital punishment scheme serves this constitutional narrowing requirement in practice.  The study involved a review of first-and second-degree murder convictions in cases filed from June 2002 through the end of 2019 to determine how many of these cases would have been factually eligible for the death penalty under the terms of Idaho’s statutes — regardless of whether they were pursued as capital cases by the prosecution.  This review revealed that 86–90% of all murder convictions were factually first-degree murder cases, and 93–98% of factual first-degree murder cases were eligible for the death penalty.  These findings strongly suggest that Idaho’s statute fails to fulfill the constitutional narrowing requirement.

The study also produced results on how frequently the death penalty is sought and imposed in death-eligible cases in Idaho.  The prosecution filed a notice of intent to seek the death penalty in 21% of factually death-eligible cases; the prosecution proceeded to a capital trial in 5% of death-eligible cases; and a death sentence was obtained in 3% of death-eligible cases.  These findings — which combine a high rate of death eligibility with a low rate of death-charging and death-sentencing — strongly suggest that death is an “unusual” punishment in Idaho, with important implications for its constitutionality under Furman v. Georgia.

February 11, 2022 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12)

Thursday, February 10, 2022

US Sentencing Commission releases big new report on "Recidivism of Federal Violent Offenders Released in 2010"

As I keep noting in recent years, it is has been great to see the US Sentencing Commission continuing to produce a lot of useful data reports even as its policy work is necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example released today is this 116-page new report titled "Recidivism of Federal Violent Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted here:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,883 federal violent offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for federal violent offenders released in 2010 to non-violent offenders in the study group....

Key Findings

  • This study demonstrated substantially greater recidivism among violent federal offenders compared to non-violent federal offenders.
    • The recidivism rates of violent and non-violent offenders released in 2005 and 2010 remained unchanged despite two intervening major developments in the federal criminal justice system — the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
    • This finding is consistent with other Commission reports demonstrating higher recidivism among violent offenders...
  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over an eight-year follow-up period, nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, compared to more than one-third (38.4%) of non-violent offenders.
  • Violent offenders recidivated more quickly than non-violent offenders.  The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders.
  • Among offenders who were rearrested, violent offenders were rearrested for a violent offense at a higher rate than non-violent offenders, 38.9 percent compared to 22.0 percent.
    • Assault was the most common type of rearrest for both violent and non-violent offenders, but a larger proportion of violent offenders (24.9%) than non-violent offenders (15.4%) were rearrested for assault.
  • Age at release is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates decrease steadily with each age group for both groups of offenders.  However, violent offenders had higher rearrest rates than non-violent offenders in each age group.  Among offenders aged 60 and older, the oldest group of offenders studied, 25.1 percent of violent offenders were rearrested compared to 11.5 percent of non-violent offenders.
  • Criminal History Category (CHC) is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates increase steadily with each CHC for both groups of offenders. However, violent offenders had higher rearrest rates than non-violent offenders in every CHC. Analyzed separately, violent instant offenders (59.9%) and violent prior offenders (64.8%) were rearrested at a higher rate than non-violent offenders (38.4%)....
  • The current recidivism findings for violent and non-violent offenders released in 2010 replicate the Commission’s findings for offenders released in 2005. Nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, the same rate for violent offenders released in 2005 (63.8%). More than one-third (38.4%) of non-violent offenders released in 2010 were rearrested, a comparable rate to non-violent offenders released in 2005 (39.8%).

February 10, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (4)

Tuesday, February 01, 2022

Fourth Circuit panel upholds a "quirk" in Virginia’s sex-offender registry against various constitutional challenges

Though Justice Scalia passed away nearly six years ago, I still recall him preaching the simple (and perhaps controversial) idea that the Constitution does not always invalidate stupid laws. (Here is an account of a speech he gave 20 years ago at Princeton university where he said "the Constitution sometimes requires upholding a law that does not make sense.") The late Justice came to mind today when I saw the recent Fourth Circuit ruling in Doe v. Settle, No. 20-1951 (4th Cir. Jan 28, 2022) (available here). Here is how the lengthy unanimous panel opinion in Doe starts and concludes:

Two months after he turned 18, John Doe was caught having sex with his 14-yearold girlfriend.  Given the facts of his arrest, Doe may well have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children.  But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex.  Doe’s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia’s sex-offender registry.  Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule.  When an offender is less than 5 years older than his victim, he may be removed from the registry in time.  But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties.  So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry.  Because of that oddity, Doe will spend the rest of his life on Virginia’s sex-offender registry with no hope for relief.

Doe — now in his 30s — sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens.  Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles.  In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe’s actual charge.  In his Eighth Amendment claim, Doe asks us whether a lifelong registration requirement is an appropriate sanction for a single nonviolent crime committed by a high-school student.

Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry.  That is not our place.  When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document.  And Virginia’s sex-offender registry complies with the Eighth and Fourteenth Amendments.  So we affirm the district court’s dismissal.....

If an 18-year-old man in Virginia has “consensual” sex with his 14-year-old girlfriend, and the next day, sends her a text message asking her to do it again, he will have committed two crimes.  But under the letter of the law in Virginia, only one of those crimes will place him on the worst tier of sex offenders on the registry with the rapists and the murderers: the text message.  That may not make much sense.

But our Constitution “presumes that even improvident decisions will eventually be rectified by the democratic process.”  See Cleburne, 473 U.S. at 440.  The judiciary is not meant to revise laws because they are clumsy, unwise, or — even in some cosmic sense — unfair.  In cases like this, courts are asked to make judgments about what is inside and what is outside the precise lines drawn by the Constitution.  And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional.  Accordingly, the district court’s judgment is AFFIRMED.

February 1, 2022 in Collateral consequences, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)