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.

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)

Saturday, January 22, 2022

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

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

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

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

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

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

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

Friday, January 14, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

"Compassionate Release and Decarceration in the States"

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

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

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

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

Thursday, January 13, 2022

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

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

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

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

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

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

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

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

January 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Wednesday, January 12, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 11, 2022

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

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

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

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

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

A few of many prior related posts:

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

Saturday, January 08, 2022

"Count the Code: Quantifying Federalization of Criminal Statutes"

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

SUMMARY

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

KEY TAKEAWAYS

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

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

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

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

Monday, January 03, 2022

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

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

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

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

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

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

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

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

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

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

Sunday, January 02, 2022

Reviewing federal criminal prosecutions of January 6 rioters one year later

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Thursday, December 30, 2021

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

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

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

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

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

Wednesday, December 29, 2021

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

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

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

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

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

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

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

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

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

December 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (11)

Tuesday, December 28, 2021

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

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

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

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

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

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

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

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

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

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

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

Monday, December 27, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Friday, December 24, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 21, 2021

A deep dive into extreme sentences in the Pelican State

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 16, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Monday, December 13, 2021

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

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

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

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

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

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

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

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

As set forth in this new report’s conclusion:

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

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

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

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

Saturday, December 04, 2021

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

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

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

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

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

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

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

Thursday, December 02, 2021

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

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

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

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

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

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

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

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

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

Tuesday, November 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 29, 2021

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Wednesday, November 24, 2021

Sentencing basics for defendants convicted of murdering Ahmaud Arbery

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

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

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

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

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

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

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

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

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

Sunday, November 21, 2021

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

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

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

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

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

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

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

Friday, November 19, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 10, 2021

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

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

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

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

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

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

Some of many prior related posts:

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

Monday, November 08, 2021

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Friday, November 05, 2021

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

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

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

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