Tuesday, December 11, 2018

Any recommendations or predictions for Michael Cohen's upcoming sentencing?

Prez Trump's former lawyer, Michael Cohen, is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  As detailed in prior posts linked below, Cohen is asking for "time served," while federal prosecutors seek a "substantial term of imprisonment" of around 3.5 years.  This lengthy CNN commentary by Elie Honig, headlined "Why sentencing judge may not show Cohen 'mercy'," predicts that prosecutors are more likely to be happy with the outcome than Cohen.  Here are excerpts:

First, what sentence is Judge William Pauley likely to impose? I've appeared in front of Judge Pauley in many cases. He is fair but tough. Lawyers and defendants often find him intimidating. He has administered tongue-lashings to many prosecutors (yes, including me), defense attorneys and litigants. He has a serious, formal demeanor on the bench....

In my experience, Judge Pauley is a stern sentencer, particularly where the defendant has exploited a position of authority and acted out of greed or arrogance. The SDNY prosecutors, clearly aware of this tendency, noted in its sentencing memo last week that Cohen, "an attorney and businessman ... was motivated to do so [commit crimes] by personal greed, and repeatedly used his power and influence for deceptive ends."

Judge Pauley can show mercy to a truly unfortunate or disadvantaged defendant, but he does not usually take kindly to abuse of power. Under the federal sentencing guidelines, the SDNY argues that Cohen faces a sentencing range of 51 to 63 months.  The federal guidelines are based on a chart: one axis reflects the defendant's prior criminal history (for Cohen, none) while the other reflects the seriousness of the offenses (for Cohen, fairly serious -- offense level 24 out of a maximum of 43).  The range is not binding but it is important. Judge Pauley must consider the range, but he can sentence within, above or below it at his discretion....

Judge Pauley likely will give Cohen some credit for providing useful information to Mueller, but almost certainly won't let Cohen walk, given the SDNY's tepid support for only a modest reduction....

The big question then is whether Cohen will continue cooperating after sentencing. Cohen vows in his sentencing memo that he will. However, once he has been sentenced, his incentive to cooperate diminishes.

There is a mechanism in the federal rules -- Rule 35 -- that permits the prosecutor to ask the judge for a reduced sentence if the defendant provides valuable cooperation after his original sentence was imposed. If Cohen receives a sentence that he simply cannot bear, he will be highly motivated to continue providing assistance to Mueller, and perhaps to come clean on previously undisclosed topics, in hopes of earning an eventual Rule 35 motion.  Paradoxically then, the more time Cohen gets on Wednesday, the more likely he may be to cooperate fully with Mueller as the investigation builds to a crescendo.

The stakes on Wednesday undoubtedly will be high for Cohen and for his ability and incentive to cooperate moving forward.  Cohen's future cooperation, in turn, will affect Mueller's ability to penetrate into the heart of corruption in the Trump campaign and the White House.

In a discussion with a member of the media, I predicted that Cohen would get a sentence in the 2.5 to 3 year range. I am incline to stick with that prediction for now, though I would like to hear reader predictions of what they Judge Pauley will do at sentencing or even recommendations as to what they think Judge Pauley should do at sentencing.

Prior related posts:

December 11, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

"Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester"

The title of this post is the headline of this NPR piece reporting on a high-profile jury sentencing verdict this afternoon.  Here are the details:

The 21-year-old avowed neo-Nazi who murdered a woman when he plowed his car into a crowd of counterprotesters last year at a white nationalist rally in Charlottesville, Va., will likely spend the rest of his life in prison.

A jury in Charlottesville said Tuesday that James Alex Fields Jr. should be sentenced to life plus 419 years in prison and $480,000 in fines, for killing Heather Heyer and seriously injuring 35 others.

Judge Richard Moore will decide whether to sign off on the recommended sentence at a hearing on March 29.

The life sentence was in response to Fields' first-degree murder conviction. The jury arrived at 419 additional years, The Associated Press reports, by recommending "70 years for each of five malicious wounding charges, 20 for each of three malicious wounding charges, and nine years on one charge of leaving the scene of an accident."

A day earlier, jurors heard emotional testimony from Heyer's mother, Susan Bro, and from several victims struck by Fields on Aug. 12, 2017, during the Unite the Right rally that weekend. "Heather was full of love, justice and fairness," Bro said, according to the Richmond Times-Dispatch. "Mr. Fields tried to silence her. ... I refuse to let him."

Bro also told the jury that she does not hate Fields for killing her daughter, a loss she described as an "explosion" that has blown up her family.

Meanwhile, Fields' attorneys asked the jury to consider their client's mental state on the day of the murder. A psychologist "testified that Fields was diagnosed with bipolar disorder and schizoid personality disorder at the ages of 6 and 14, respectively," the Times-Dispatch reported....

Fields also faces federal hate crime charges, which allow for the death penalty.

I think it at once silly and telling when defendants are facing or are given sentences that are much longer than the United States has been a country. And here, of course, Fields will have to be in prison until the year 2437 and then face a life sentence!

Jokes aside, the interesting questions now are (1) whether the Virginia judge will adopt the jury's sentencing recommendation, and (2) whether federal prosecutors will still be eager to pursue federal charges to possibly seek a death sentence for Fields.

Prior related post:

December 11, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, December 10, 2018

SCOTUS rules unanimously that ACCA predicates can include all sorts of burglary

The Supreme Court this morning handed down its first full sentencing opinion of the Term, and the opinion in yet another Armed Career Criminal Act dispute over statutory interpretation is not all that interesting or all that surprising.  Justice Breyer wrote a short opinion for a unanimous court in US v. Stitt, No. 17-765 (S. Ct. Dec. 10, 2018) (available here), and it gets started this way:

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term.  The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes.  18 U. S. C. §924(e).  Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii).  And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.  We hold that it does.

And here are a few paragraphs from the opinion's substantive discussion:

The word “burglary,” like the word “crime” itself, is ambiguous.  It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”).  We have held that the words in the Armed Career Criminal Act do the first.  Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”  Begay v. United States, 553 U.S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19).  The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U. S. 575 (1990).  That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome.

In Taylor, we did more than hold that the word “burglary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion.  We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act.  Id., at 580–592.  We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a felony.  Id., at 593.  But we added that it must include more.  The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)).

For a small number of federal defendants facing ACCA's long mandatory minimum based on a quirky prior crime, this ruling is very important and consequential.  For others, not much too see here.

December 10, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence

As indicated in this brief AP report headlined "Jury to recommend sentence for white nationalist," a high-profile jury sentencing gets started today:

A man convicted of first-degree murder for driving his car into counterprotesters at a white nationalist rally in Virginia faces 20 years to life in prison as jurors reconvene to consider his punishment.

The panel that convicted James Alex Fields Jr. will hear more evidence Monday before recommending a sentence for Judge Richard Moore.

Fields was convicted Friday of killing Heather Heyer during last year's "Unite the Right" rally in Charlottesville, organized to protest the planned removal of a statue of Confederal Gen. Robert E. Lee. The 21-year-old Fields, of Maumee, Ohio, also was found guilty of injuring dozens of others by driving into a crowd of people who were marching peacefully after the rally.

I know very little about Virginia's sentencing process, and I am now very curious about what they are allowed to hear at this stage.  I do know that Virginia jurors are not told about sentencing guidelines that would be applicable and considered at a judicial sentencing.  And I wonder if they can be told about the fact that the defendant here is also facing dozens of federal charges.  Here is a little about recent history of jury sentencing from the Virginia Sentencing Commission's 2018 Annual Report (from pages 25-27):

There are three methods by which Virginia’s criminal cases are adjudicated: guilty pleas, bench trials, and jury trials.  Felony cases in circuit courts are overwhelmingly resolved through guilty pleas from defendants, or plea agreements between defendants and the Commonwealth.  During the last fiscal year, 91% of guideline cases were sentenced following guilty pleas.  Adjudication by a judge in a bench trial accounted for 8% of all felony guidelines cases sentenced.  During FY2018 1.2% of cases involved jury trials. In a small number of cases, some of the charges were adjudicated by a judge, while others were adjudicated by a jury, after which the charges were combined into a single sentencing hearing....

In FY2018, the Commission received 270 cases adjudicated by juries.  While the concurrence rate for cases adjudicated by a judge or resolved by a guilty plea was at 82% during the fiscal year, sentences handed down by juries concurred with the guidelines only 39% of the time.  In fact, jury sentences were more likely to fall above the guidelines than within the recommended range.  This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995. By law, however, juries are not allowed to receive any information regarding the sentencing guidelines....

In cases of adults adjudicated by a jury, judges are permitted by law to lower a jury sentence.  Typically, however, judges have chosen not to amend sanctions imposed by juries. In FY2018, judges modified 16% of jury sentences.

December 10, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Saturday, December 08, 2018

Even more great clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  And last month in this post I reported that the Oklahoma Pardon and Parole Board had recommended commutations for a sizable group of offender, and this past week Governor Mary Fallin officially approved 21 commutation requests.  This local article reports on these development, and here are excerpts (with some emphasis added): 

Oklahoma Governor Mary Fallin has approved commutation requests for 21 non-violent offenders. The 21, whose names were read off one-by-one Wednesday by the governor, made it to the final step in a three-stage process by receiving a favorable vote from at least a simple majority of the five-member Oklahoma Pardon and Parole Board.

"We can keep people who are dangerous to society locked up, for those who have addiction issues that are non-violent, low-level offenders, there's a better way of doing this in our nation," Fallin said.  "On a personal note, this is just me saying this but, as we prepare for the Christmas holiday season, let's not forget there is a God of second chances."

Those being assisted through the commutation campaign are serving 10 years or longer for crimes that now carry lesser punishments following recent reforms approved by voters and legislators.

One of those was Juanita Peralta. Her daughter, Destiny Pinon, told News 4 that her mother was serving a 15-year sentence after she was arrested for a DUI while in a drug court program. Peralta has served about two years of her sentence in Taft, Oklahoma. "It’s unreal. I mean, it’s a good unreal feeling," Pinon said.  "When they said her name, it was just a rush of emotions."...

The 21 offenders were sentenced to a cumulative 349 years of incarceration. Wednesday’s action shaved 306 years off those incarcerated.

Richard Quillen, along with other parents and family members, was able to break the news over the phone to his daughter, Peyton Quillen. She had been serving time in Tulsa for a drug-related offense. "Governor Mary Fallin just signed your release papers and, as of this moment, you are a free woman," Richard told his daughter over the phone. "Okay, I love you."

Edmond resident Alyshea Rains, the mother of commuted offender Alexis Rains, told News 4 that the past two years without her daughter has been nothing short of tough. Alexis, now 24, was sentenced to 10 years for drug possession. She will return home to her now 5-year-old daughter....

News 4 spoke with Kayla Jeffries on Wednesday moments after she was released from the Kate Barnard Correctional Center. Her 20-year sentence was commuted after she was arrested for drug infractions at the age of 18. Jeffries served two and a half years at Mabel Bassett Correctional Center and six months at the Kate Barnard Correctional Center. “It’s surreal. I’m praising God. I’m thanking God every step I take,” she said. “I had my youngest daughter at Mabel Bassett, so I haven’t really had any bonding or or one on one time with her so I’m really looking forward to that and to just being a good mom and telling my story.”

Next Wednesday, the Oklahoma Pardon and Parole Board will consider sending eight more commutation applicants to the governor.

Prior related posts:

December 8, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 05, 2018

Previewing SCOTUS (re)consideration of "separate sovereigns" Double Jeopardy exception in Gamble v. US

After delaying a day for honoring a deceased former Prez, on Thursday morning, the Supreme Court will hear oral argument in Gamble v. United States to “separate sovereigns” doctrine providing that different sovereigns can prosecute for the same conduct without violating the Constitution's double jeopardy prohibition. Here are links to some folks discussing this case:

The Atlantic: "There’s an Exception to the Double-Jeopardy Rule: The Supreme Court will hear a challenge to the “separate sovereigns” doctrine in Gamble v. United States."

The Economist: "The Supreme Court considers nixing a “double jeopardy” loophole"

SCOTUSblog: "Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception"

The Volokh Conspiracy: "Dual Sovereign Doctrine Under Attack in the Supreme Court: Strong originalist arguments exist for overruling the dual sovereign doctrine in a case being argued before the Supreme Court today."

December 5, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Texas completes execution for escapee involved in killing during crime spree

As reported in this local article, headlined "'Texas 7' escapee Joseph Garcia executed in Huntsville," the Lone Star State completed yet another execution last night.  Here are the basics:

Nearly two decades after the brazen prison break-out and cross-state crime spree that landed him on America's Most Wanted and eventually on death row, Texas 7 prisoner Joseph Garcia was executed Tuesday night in Huntsville....  He was pronounced dead at 6:43 p.m., 13 minutes after the lethal dose began.

In recent weeks, the 47-year-old convicted in the Christmas Eve killing of a North Texas police officer launched a slew of appeals, lawsuits, pleas for reprieve and requests for clemency. His last-minute legal moves raised questions about his initial conviction, the controversial "law of parties" and the source of the state's lethal injection supplies.

But on Friday, the parole board rebuffed the condemned man's request for clemency, and lower courts turned down appeal after appeal. By Tuesday morning, he still had a number of claims in front of appeals courts and the U.S. Supreme Court, and a long-shot bid for reprieve sitting on the governor's desk.  "I am on death row because of the actions and intent of others and because I am one of the Texas Seven, case closed," he wrote the Chronicle weeks before his scheduled execution.  "Is it right that I should be murdered for something that I did not do?"

To some friends and family of the slain policeman — Officer Aubrey Hawkins – the answer is clear.  "Whatever participation he had, he went along with it," said Seagoville police Sgt. Karl Bailey, a long-time friend of the Hawkins family. "The whole thing was sparked by the escape from prison, the burglaries - it was a crime spree."

Though Garcia offered no apology in his final statement, he sent out a message of remorse through his attorneys. "I want to offer my heartfelt apology to the family of Officer Hawkins, and the workers at Oshman's in Dallas," he said. "None of this was supposed to happen. I wish it didn't."

At the time of the breakout in December 2000, the Bexar County native was locked up in a prison south of San Antonio, serving a 50-year sentence stemming from a boozy fight that ended with one man dead. Garcia was convicted of murder, but he has long maintained that it was the other man — Miguel Luna — who attacked him, and that the fatal stabbing was only in self-defense.

Behind bars, he made friends with a charismatic thief named George Rivas.  First, they bonded over a "poor man's spread" of prisoner-made food. Then, they plotted an escape. Inspired by a book, their plan took months to prepare.  They picked a crew, spread rumors among the guards, surveyed the grounds and gathered supplies.  On Dec. 13, they made good on their plot....  

After pulling off a pair of robberies to load up with cash and supplies in the Bayou City, the fleeing prisoners left and headed north.  In the Dallas suburb of Irving, the seven escapees staked out an Oshman's sporting goods store....  They took hostages and stole guns, money and supplies.  But before they left, a lone police officer showed up.

Garcia says he was still inside the building when he heard the shots, but some of the other men offered different accounts.  In all, five men fired shots. Rivas admitted he was one of them – but the state never proved that Garcia was. He still maintains that he was inside the building when the shooting started. 

Afterward, they fled to Colorado, driving straight into a blizzard. They stopped at motels along the way, then holed up in a trailer park near Colorado Springs.  For a month, they posed as Christian missionaries before they were finally captured.  One of the men — Larry Harper — killed himself rather than be taken back to prison.

The other six were sent to death row, and three have since been executed.  To the former prosecutor who handled all six of the trials, a fourth execution date comes as a welcome relief.  "It's been almost 18 years," attorney Toby Shook told the Chronicle earlier this year. "It's satisfying that the actual sentence will actually be carried out."

In his final weeks, Garcia has launched an array of appeals. In one claim, he argued that his original Bexar County killing was actually self-defense and not murder. If so, he said, it shouldn't have been used as evidence of future dangerousness — something the state is required to show to secure a death sentence.  Among Garcia's other pending legal actions is a challenge to the state's lethal injection procedures in light of recent reporting about the alleged source of the drugs. In recent days, he'd also tried lobbing a lawsuit at the parole board, arguing the seven-member panel had too many former law enforcement members to be representative of the general public....

He was the 12th Texas prisoner executed this year. Another death date is scheduled for next week.

December 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sentencing Project launches campaign to "End Life Imprisonment" with new book and other resources

Meaning_of_life_finalThe folks at The Sentencing Project this week officially kicked off what they are calling here a "Campaign to End Life Imprisonment." The website for the campaign has a facts, figures and stories about life imprisonment, and this four-page fact sheet has lots of data and graphs and includes these particulars:

While people of color are over-represented in prisons and jails; this disparity is even more evident among those sentenced to life imprisonment, where one of every five African American prisoners is serving a life sentence.

Over 6,000 women are serving life or virtual life sentences. The number of women serving life sentences has risen at a faster rate than for men in recent years. Between 2008 and 2016, women lifers increased by 20%, compared to a 15% increase for men.

Juveniles serve life sentences at alarming rates as well. In fact, the U.S. is unique in the world in its use of life imprisonment without parole for crimes committed by teenagers.

In addition to the more than 2,000 people serving life without the possibility of parole, there are more than 7,000 juveniles serving life with parole and another 2,000 serving “virtual life” prison terms of 50 years or more.

In conjunction with this launch, the New Press has published this new book authored by Marc Mauer and Ashley Nellis, with contributions by Kerry Myers, titled "The Meaning of Life: The Case for Abolishing Life Sentences." Here is how the publisher's website describes the book:

Most Western democracies have few or no people serving life sentences, yet here in the United States more than 200,000 people are sentenced to such prison terms.

Marc Mauer and Ashley Nellis of The Sentencing Project argue that there is no practical or moral justification for a sentence longer than twenty years.  Harsher sentences have been shown to have little effect on crime rates, since people “age out” of crime — meaning that we’re spending a fortune on geriatric care for older prisoners who pose little threat to public safety.  Extreme punishment for serious crime also has an inflationary effect on sentences across the spectrum, helping to account for severe mandatory minimums and other harsh punishments.

A thoughtful and stirring call to action, The Meaning of Life also features moving profiles of a half dozen people affected by life sentences, written by former “lifer” and award-winning writer Kerry Myers.  The book will tie in to a campaign spearheaded by The Sentencing Project and offers a much-needed road map to a more humane criminal justice system.

December 5, 2018 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Sunday, December 02, 2018

En banc Fifth Circuit overrules multiple precedents to clean up (and expand) its "crime of violence" jurisprudence

A helpful reader made sure I did not miss a remarkable en banc opinion handed down by the Fifth Circuit on Friday in US v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018) (available here).  Regular readers may recall that I suggested in this post that it might feel like dropping through Dante's various levels of hell when seeking to sort through intricate precedents to figure out what is and what is not a "violent felony" or a "crime of violence" for federal sentencing purposes.  There is a hellish-landscape quality to the 30+ pages of Reyes-Contreras, but the start and close of the opinion hints at how the en banc Fifth Circuit is doing its level best to escape (with footnotes omitted):

Fredis Reyes-Contreras pleaded guilty of illegal reentry.  Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”).  Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement.  Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.  The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion.  Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence....

It is high time for this court to take a mulligan on COVs.  The well-intentioned experiment that launched fifteen years ago has crashed and burned.  By requiring sentencing courts and this court to ignore the specifics of prior convictions well beyond what the categorical approach and Supreme Court precedent instruct, our jurisprudence has proven unworkable and unwise.  By employing the term “crime of violence,” Congress and the U.S. Sentencing Commission obviously meant to implement a policy of penalizing felons for past crimes that are, by any reasonable reckoning, “violent,” hence the term.

As with many legal standards, decisions are difficult at the margins.  But this case is nowhere near the margin.  Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied, 139 S.Ct. 63 (2018).  The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs.  A more realistic approach comports with reason and common sense. 

In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV.  In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished.  Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement.  And we hold that, even if it did not, there is not the realistic probability of enforcement.

The holdings just announced, true to Supreme Court precedent, are in conflict with numerous panel and en banc decisions of this court. We therefore overrule, in whole or in part, as explained herein, the following [18] decisions and their progeny....  Reyes-Contreras’s conviction of voluntary manslaughter under MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The judgment of conviction and sentence is AFFIRMED.

December 2, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, November 29, 2018

New data show major change in felony filings after Oklahoma initiative defelonized various offenses

This new posting, titled "In its first year, SQ 780 reversed 10 years of growth in felony filings," reports on interesting new data out of Oklahoma concerning the impact of the passage of a criminal justice ballot initiative back in 2016. Here are details:

New data shows that State Question 780 reduced felony filings by over 14,000 across Oklahoma’s District Courts in its first year in a major realignment of how the state deals with low-level offenses.  SQ 780, approved by voters by a wide margin in 2016, reclassified simple drug possession and many minor property crimes as misdemeanors rather than felonies.  Assessing the First Year of SQ 780, a new report from Open Justice Oklahoma, uses original data from aggregated District Court criminal filings in the last ten years to evaluate the impact of the justice reform ballot measure in FY 2018.  Open Justice Oklahoma, a project of the Oklahoma Policy Institute, seeks to improve understanding of our justice system through analysis of public data. The data reveal several trends:

  1. SQ 780 reversed a long trend of increasing felony and decreasing misdemeanor filings across the state.Total felony filings fell by 14,141, or 28.4 percent, in FY 2018, while total misdemeanors rose by 6,437, or 13.6 percent.

  2. Cases involving reclassified charges shifted sharply from felony to misdemeanor in FY 2018. The number of felony cases filed involving simple drug possession fell by 14,164, or 74.9 percent, and felony cases involving property crimes fell by 8,095, or 29 percent, from FY 2017 to FY 2018. Misdemeanor cases involving drug possession rose by over 160 percent, while those involving property crimes rose by over 10 percent.

  3. Filing of other cases showed little change statewide in FY 2018, but felony cases filed with possession with intent to distribute (PWID) charges rose slightly. The number of felony cases involving PWID rose by 431, or 13.6 percent, but the number filed in FY 2018 (3,604) was only slightly more than were filed in FY 2016 (3,515). The number of felony cases involving drug trafficking changed by less than one percent.

  4. The effects of SQ 780 varied across counties and District Attorney districts. Nearly all counties saw declines in felony filings; in some rural counties, like Cotton and Harper Counties, felonies dropped by more than 50 percent. Some counties saw increases in PWID cases of 200 percent or more in FY 2018 compared to the average of the previous three years, including Haskell and Dewey Counties; the patterns in these mostly rural counties suggest there could be a shift toward harsher filing practices.

November 29, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Lots of interesting data from BJS on "Time Served in State Prison, 2016"

The Bureau of Justice Statistics released this interesting new document titled simply "Time Served in State Prison, 2016," which has lots of interesting data on how much time offenders serve in state prisons. Here is what BJS lists as "Highlights":

November 29, 2018 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress

As reported in this AP piece, "Michael Cohen, President Donald Trump's former lawyer, made a surprise appearance before a federal judge in New York on Thursday to plead guilty to lying to Congress about work he did on an aborted project to build a Trump Tower in Russia." Here is more:

Flanked by his lawyers, Cohen admitted making false statements in 2017 to the U.S. Senate Select Committee on Intelligence about the project. Cohen told the judge he lied about the timing of the negotiations and other details to be consistent with Trump's "political message."

Cohen and prosecutors referred to Trump as "individual one" throughout Thursday's proceedings and said he lied "to be loyal to Individual One." Among other lies, Cohen said he told Congress that all discussions of the Moscow Trump Tower project ended by January 2016, when they had actually continued until June of that year....

In August, Cohen pleaded guilty to other federal charges involving his taxi businesses, bank fraud and his campaign work for Trump. Reacting to the plea to the new charges, House Speaker Paul Ryan said Cohen "should be prosecuted to the extent of the law. That's why we put people under oath."

Cohen gave a statement to congressional committees last year saying the president's company pursued a project in Moscow during the Republican primary but that the plan was abandoned "for a variety of business reasons." Cohen also said he sent an email to the spokesman for Russian President Vladimir Putin as part of the potential deal. In his statement, he said that he worked on the real estate proposal with Felix Sater, a Russia-born associate who he said claimed to have deep connections in Moscow.

The discussions about the potential development began after Trump had declared his candidacy. Cohen had said the talks ended when he determined that the project was not feasible. Cohen had also disclosed that Trump was personally aware of the deal, signing a letter of intent and discussing it with Cohen on two other occasions.

As readers may recall and as detailed in this post, Cohen other plea deal from this past summer included an agreement not to challenge any sentence imposed in the range of 46 to 63 months of imprisonment. The folks at Lawfare now have collected here the criminal information, and plea agreement in the latest version of US v. Michael Cohen.  The nine-page plea agreement has lots of sentencing talk but none of that talk is that interesting because the guideline range for this offense seems clearly to be just zero to six months of imprisonment.  Consequently, from a sentencing perspective, it seems that this otherwise notable development is unlikely to significantly change Cohen's sentencing exposure.  And his ultimate sentence is likely to turn on how he cooperates with the Special Counsel team and how that team portrays his cooperation at sentencing.

Prior related posts:

November 29, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Monday, November 26, 2018

Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"

As reported in this ABC News piece, "Prosecutors with special counsel Robert Mueller’s legal team told a judge Monday night that President Donald Trump’s one-time campaign chairman Paul Manafort has breached his cooperation agreement and lied to investigators." Here is more about the latest trouble for Manafort, which became public via this filing:

“After signing the plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters, which constitute breaches of the agreement,” the filings says.

Manafort’s legal team has disputed that charge, telling a federal judge that the embattled former Trump adviser “believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement.”

The DC court filing brings to a head weeks of speculation that Manafort’ s cooperation with the special counsel could be breaking down. Earlier this month, there were mounting tensions between Mueller and Manafort over Manafort’ s apparent lack of cooperation with the investigation, multiple sources familiar with the matter told ABC News. 

Manafort had been fielding questions about a wide range of topics since September when he initially agreed to cooperate, the sources said. But special counsel prosecutors were “not getting what they want,” one source with knowledge of the discussions said.

As noted in this post from September, Manafort's plea deal seemed to cap his sentencing exposure at 10 years despite a calculated guideline sentencing range much higher. This latest filing does not ensure that the feds will now seek or secure a sentence higher than 10 years for Manafort, but it certainly suggests that the special counsel office will object strongly to Manafort's likely arguments for a much lower sentence.

Some prior related posts:

November 26, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Sunday, November 25, 2018

Student SCOTUS preview: starting a series of posts on United States v. Haymond

6a00d83451574769e201b7c9134b4d970b-320wiIn this post last year I noted the interesting constitutional procedure opinion handed down by the Tenth Circuit in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here), and in this post last month I noted that the  Supreme Court accepted the petition for certiorari filed by the federal government in the case.  I am very lucky to have a great student, Jim McGibbon, who is very interested in the Haymond case, and he has agreed to draft a series of preview posts on the case.  Here is this first one:

The Supreme Court, on October 26, 2018, granted certiorari in United States v. Haymond.  The case concerns the constitutionality of a federal statutory provision which imposes a mandatory minimum prison sentence for federally-convicted sex offenders who commit another sexually-related offense while serving a term of supervised release.

A federal district court, in 2010, convicted Haymond of possessing child pornography and sentenced him to thirty-eight months of prison and ten years of supervised release.  A sentencing judge is authorized to impose a supervised release sentence based on 18 U.S.C. § 3583(a), a provision of the Sentencing Reform Act of 1984.   Supervised release has long been considered, in the words of the Tenth Circuit, “part of the sentence” for the original crime as are the various terms and conditions that an offender must comply with during the period of supervised release.  Violation of the conditions of supervised release sometimes can result in revocation and additional prison time, but the Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), described “postrevocation sanctions as part of the penalty for the initial offense.”  Id. at 700.

On April 24, 2013, Haymond was released from prison, and he began serving his 10-year term of supervised release.  Two years into his supervised release, Haymond’s probation officers conducted a surprise search of Haymond’s apartment.  The officers seized a password-protected cellphone and a personal computer belonging to Haymond, as well as other computers belonging to a roommate or in the apartment.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release on various grounds. 

Haymond was subject to a supervised release revocation hearing before a district judge, a unique hearing generally considered comparable to parole revocation in which the "full panoply of rights due a defendant ... does not apply.”  Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond’s supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  The relevant portion of 18 U.S.C. § 3583(k) provides that sex offenders on supervised release who commit “any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … not less than 5 years.”

Haymond appealed to the Tenth Circuit Court of Appeals, arguing that “(1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process.”  The Tenth Circuit affirmed the district court’s finding of child pornography possession and the revocation of Haymond’s supervised release, but vacated the mandatory sentence and remanded the case back to the District Court for resentencing.

A split panel of Tenth Circuit held that 3583(k) was unconstitutional for two reasons.  The majority first asserted that the statute impermissibly strips the sentencing judge of discretion established under Booker and its progeny because it imposes a mandatory minimum sentence.  The court also asserted that it unlawfully imposes heightened punishment using  a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne

The government filed a petition for a writ of certiorari on June 15, 2018 posing this question for review:

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

With certiorari granted last month and the briefs forthcoming, this case poses the potential to impact not only the operation of federal supervised release revocation, but also the future of Apprendi rights. 

In coming posts, the briefs filed by the parties and potential amici will be discussed.

Prior related posts:

November 25, 2018 in Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, November 19, 2018

"Drug-Induced Homicide Defense Toolkit"

The title of this post is the title of this notable new document now available via SSRN and authored by Valena Beety, Alex Kreit, Jeremiah Goulka and Leo Beletsky.  Here is its abstract:

In response to the growing opioid crisis, many prosecutors are treating overdose deaths as homicides.  Since 2010, drug-induced homicide prosecutions have increased at least threefold.  Criminal defense attorneys and defendants' families have asked for help in understanding these cases and how to defend them.  This Toolkit is an effort to provide that help.

And here is an introductory paragraph from the first part of the document:

This Toolkit is intended to serve as an informational guide for defense counsel and other interested parties working to mount a defense for individuals charged with drug-induced homicide or similar crimes resulting from overdoses.  The creation of this toolkit was spurred by two related trends: (1) information from parents, news reports, and other sources about pervasively inadequate defense being provided to many individuals charged with these crimes, and (2) widespread efforts by prosecutors to disseminate information and tools that aid other prosecutors and law enforcement in investigating and bringing drug-induced homicide and related charges, including presentations at conferences, continuing legal education modules, webinars, and the like.

November 19, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, November 15, 2018

Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.

November 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Sunday, November 11, 2018

"US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?"

The title of this post is the title of this new paper now available via SSRN and authored by Katherine Beckett, Lindsey Beach, Emily Knaphus and Anna Reosti.  Here is its abstract:

Although the wisdom of mass incarceration is now widely questioned, incarceration rates have fallen far less than what would be predicted on the basis of crime trends.  Informed by institutional studies of path dependence, sociolegal scholarship on legal discretion, and research suggesting that “late mass incarceration” is characterized by a moderated response to nonviolent crime but even stronger penalties for violent offenses, this article analyzes recent sentencing‐related reforms and case processing outcomes.  Although the legislative findings reveal widespread willingness to moderate penalties for nonviolent crimes, the results also reveal a notably heightened system response to both violent and nonviolent crimes at the level of case processing.

These findings help explain why the decline in incarceration rates has been notably smaller than the drop in crime rates and are consistent with the literature on path dependence, which emphasizes that massive institutional developments enhance the capacity and motivation of institutional actors to preserve jobs, resources, and authorities.  The findings also underscore the importance of analyzing on‐the‐ground case processing outcomes as well as formal law when assessing the state and fate of complex institutional developments such as mass incarceration.

November 11, 2018 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Saturday, November 10, 2018

"Farewell to the Felonry"

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

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

November 10, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Tuesday, November 06, 2018

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

November 6, 2018 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, October 31, 2018

"The defendant faces a maximum possible penalty of death, or life without parole, followed by a consecutive sentence of 535 years’ imprisonment."

The title of this post is a sentence near the end of this Department of Justice press release fully titled "Pennsylvania Man Charged with Federal Hate Crimes for Tree Of Life Synagogue Shooting: Robert Bowers Indicted on 44 Counts Including Hate Crimes Resulting in Deaths." Here is how the release gets started:

A federal grand jury sitting in the U.S. District Court for the Western District of Pennsylvania charged a Pennsylvania man with federal hate crimes, including the murder of 11 people, for his actions during the Oct. 27, 2018 shootings at the Tree of Life Synagogue in Pittsburgh’s Squirrel Hill neighborhood. United States Attorney General Jeff Sessions, Acting Assistant Attorney General John Gore for the Civil Rights Division, U.S. Attorney for the Western District of Pennsylvania Scott W. Brady, and FBI-Pittsburgh Special Agent in Charge Robert Jones made the announcement.

Robert Bowers, 46, of Baldwin, Pa., was charged in a 44-count indictment returned today.

According to the indictment, on Oct. 27, 2018, Bowers drove to the Tree of Life Synagogue in Pittsburgh, Pennsylvania, where members of the Tree of Life, Dor Hadash, and New Light Jewish congregations gathered to engage in religious worship. Bowers entered the building armed with multiple firearms, including Glock .357 handguns a Colt AR-15 rifle. The indictment alleges that while inside the Tree of Life Synagogue, Bowers opened fire, killing and injuring members of the three congregations, as well as injuring multiple responding public safety officers. While inside the Tree of Life Synagogue, Bowers made statements indicating his desire to “kill Jews.”

Specifically, the indictment charges:

  • Eleven counts of obstruction of free exercise of religious beliefs resulting in death;
  • Eleven counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence;
  • Two counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury;
  • Eleven counts of use and discharge of a firearm during and in relation to a crime of violence;
  • Eight counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer; and
  • One count of obstruction of free exercise of religious beliefs involving use of a dangerous weapon and resulting in bodily injury to a public safety officer.

Prior related post:

October 31, 2018 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Notable federal sentencing argument that "nature and circumstances of the offense" includes "rhetorical China shop bull who is now our president"

C487660a9f953e1a74a1e5c649ef3640--gloveA helpful reader made sure I did not miss this HuffPost piece concerning a notable federal sentencing filing in a high-profile federal case.  The full headline of the piece sets forth the basics: "Trump Fan Convicted In Anti-Muslim Terror Plot Asks Judge To Consider Trump’s Rhetoric: Patrick Stein’s attorneys also said he learned about the Quran 'from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage'."  Here are more details from this article (which also include a link to the full filing):

Attorneys for a President Donald Trump supporter who was convicted in a domestic terrorism plot aimed at slaughtering Muslim refugees asked a federal judge to factor in the “backdrop” of Trump’s campaign rhetoric when deciding their client’s sentence.

Patrick Stein was one of three right-wing militiamen found guilty in April of a conspiracy to kill Muslim refugees living in rural Kansas. Ahead of the 2016 election, Stein and two others plotted with an FBI informant and an undercover agent to bomb an apartment complex that housed Muslims in Garden City. Stein went by the handle “Orkin Man” and referred to Muslims as “cockroaches” he wanted exterminated.

His sentence was expected to be announced Friday but has been delayed until Nov. 19.

At trial, defense attorneys referred to the defendants as “knuckleheads” who were engaged in “locker room talk,” and Stein’s attorney argued his client was a victim of a “chaos news” environment that had him thinking a civil war was coming. A jury convicted Stein and his co-defendants, Curtis Allen and Gavin Wright, on weapons of mass destruction and conspiracy against civil rights charges.... The government said it is seeking life sentences for all three defendants.

Stein’s attorneys, James Pratt and Michael Shultz, argued Monday in a sentencing memo that sending Stein to prison for life was unwarranted and that a sentence of 15 years would be appropriate. They said the judge should factor in the “backdrop to this case” when crafting an appropriate sentence.

“2016 was ‘lit.’ The court cannot ignore the circumstances of one of the most rhetorically mold-breaking, violent, awful, hateful and contentious presidential elections in modern history, driven in large measure by the rhetorical China shop bull who is now our president,” they wrote.

“Trump’s brand of rough-and-tumble verbal pummeling heightened the rhetorical stakes for people of all political persuasions,” they added. “A personal normally at a 3 on a scale of political talk might have found themselves at a 7 during the election. A person, like Patrick, who would often be at a 7 during a normal day, might ‘go to 11.’ See SPINAL TAP.  That climate should be taken into account when evaluating the rhetoric that formed the basis of the government’s case.”

Stein’s attorneys, who called their client an “early and avid” Trump supporter, said it was important to keep in mind that “almost no one thought Trump was going to win” when evaluating the likelihood of an attack. The plot was supposed to take place after the election, as the group didn’t want their attack to boost Hillary Clinton’s presidential campaign. Stein, in a message to an undercover agent, wrote that if they attacked ahead of the election it would “give a lot of ammunition to the Hillary supporters” and said that Clinton could never be allowed to be president.

“Trump’s win changed everything, and it is reasonable to speculate that it would have changed things among the defendants as well,” the attorneys wrote. “The urgency for action would be gone. The feeling of a losing battle would be gone. The conspiracies, in part, would be disproven as the transition from Obama to Trump took place. It is logical to conclude that the discussed attack would never have happened in the world that existed post-Trump.”

Stein’s attorneys said their client got caught up in the anti-Muslim information he was devouring online. His knowledge of the Quran, his attorneys wrote, “came directly from the internet and conservative talk-show hosts such as Sean Hannity and Michael Savage. Patrick himself had never read the Quran, nor had he participated in a comparative study of any religion.”

Stein, his attorneys wrote, was “the perfect, vulnerable target” for the FBI, and had relapsed into alcoholism and “had used methamphetamine regularly,” including after he met FBI informant Dan Day. They said that Stein’s crimes “demonstrated an extreme level of hatred and fear, but they also demonstrated an utter lack of sophistication.”

Any sentencing document that effectively cites Spinal Tap garners my appreciation, and it obviously deserves to be honored for being willing to take its arguments "one louder."

October 31, 2018 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, October 30, 2018

South Dakota completes execution of prison guard murderer who relinquished appeals

This NBC News piece, headlined "Inmate makes joke in last words before execution for killing South Dakota prison guard," reports on the 19th execution in the US in 2018.  Here are some of the details:

A South Dakota inmate who killed a correctional officer seven years ago during a failed prison escape on the guard's 63rd birthday was put to death Monday evening, marking the state's first execution since 2012.

Rodney Berget, 56, received a lethal injection of an undisclosed drug for the 2011 slaying of Ronald "R.J." Johnson, who was beaten with a pipe and had his head covered in plastic wrap at the South Dakota State Penitentiary in Sioux Falls.  Berget's execution was the state's fourth since it reinstituted the death penalty in 1979.

It originally was to be carried out at 1:30 p.m. CDT (2:30 p.m. ET), but was delayed for hours while the U.S. Supreme Court weighed a last-minute legal bid to block it.  Berget joked in his last words about the wait, saying, "Sorry for the delay, I got caught in traffic."...

Johnson's widow, Lynette Johnson, who witnessed the execution, said her husband experienced "cruel and unusual punishment" but Berget's lethal injection was "peaceful" and "sterile."

"What's embedded in my mind is the crime scene.  Ron laid in a pool of blood. His blood was all over that crime scene," she said.  "That's cruel and unusual punishment."...

Berget was serving a life sentence for attempted murder and kidnapping when he and another inmate, Eric Robert, attacked Johnson on April 12, 2011, in a part of the penitentiary known as Pheasantland Industries, where inmates work on upholstery, signs, furniture and other projects.  After Johnson was beaten, Robert put on Johnson's pants, hat and jacket and pushed a cart loaded with two boxes, one with Berget inside, toward the exits.  They made it outside one gate but were stopped by another guard before they could complete their escape through a second gate. Berget admitted to his role in the slaying.

Robert was executed on Oct. 15, 2012. The state also put an inmate to death on Oct. 30, 2012, but that was the last one before Berget's....

Berget's mental status and death penalty eligibility played a role in court delays. Berget in 2016 appealed his death sentence, but later asked to withdraw the appeal against his lawyers' advice.  Berget wrote to a judge saying he thought the death penalty would be overturned and that he couldn't imagine spending "another 30 years in a cage doing a life sentence."

The Department of Corrections planned to use a single drug to execute Berget. Policy calls for either sodium thiopental or pentobarbital. Pentobarbital was used in the state's last two executions.  South Dakota has not had issues with obtaining the drugs it needs, as some other states have, perhaps because the state shrouds some details in secrecy. Lawmakers in 2013 approved hiding the identities of its suppliers.

Berget was the second member of his family to be executed. His older brother, Roger, was executed in Oklahoma in 2000 for killing a man to steal his car.

October 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Friday, October 26, 2018

Attorney General Sessions indicates pipe bomb suspect Cesar Sayoc charged with five federal crimes and facing "only" 48 years in prison

Deal enough marijuana, as the Life for Pot website highlights, and you can get sent federal prison for life.  But, according to this statement by Attorney General Jeff Sessions, the fellow arrested for sending pipe bombs to a dozen prominent politicians and others is, at least for now, only facing five criminal charges and a maximum sentencing exposure of 48 years.  Here are excerpts from the AG's comments today:

Over the past week, more than a dozen suspicious packages have been sent through the United States Postal Service to a media outlet, a Hollywood actor, and at least seven high-ranking current and former political leaders in the Democratic Party.

This is utterly unacceptable. Political violence — or the threat of violence — is antithetical to our vigorous system of self-government. It is a threat to that respect for law and process that allows our people to accept legislation, elections, and court rulings with which we do not agree.

This is the central feature of our system of government: you advocate for your beliefs enthusiastically but we peaceably and lawfully comply with the results. Please know that from the beginning this investigative team has made this matter a top priority, focusing their great talents and expertise on neutralizing this threat. They have moved swiftly and professionally, using extraordinary technical expertise, to apprehend the one alleged responsible.  This is a demonstration of the skill, the capability, and determination of our American law enforcement.

So I am pleased to participate in this announcement that a suspect is in the custody of the FBI.  I want to remind everyone that the defendant in this case — as in every case — is innocent until proven guilty.

He has been charged today with five federal crimes, including interstate transportation of an explosive, illegal mailing of explosives, threats against former presidents and certain other persons, threatening interstate communications, and assaulting current and former federal officers.

For these charges, the defendant faces up to 48* years in prison. [*An earlier version of these remarks incorrectly stated 58 years.]

These charges may change or expand as the investigation continues.

This is a law-and-order administration.  We will not tolerate such lawlessness, and especially not political violence....

I want to reiterate that the defendant in this case is innocent until proven guilty. But let this be a lesson to anyone — regardless of their political beliefs — that we will bring the full force of law against anyone who attempts to use threats, intimidation, and outright violence to further any agenda.

We will find you.  We will prosecute you to the fullest extent of the law.

Regular readers of this blog should know I am much more troubled by people getting sentenced to "life for pot" than I am by pipe bomb suspect Cesar Sayoc facing "only 48" years in federal prison. Assuming the feds have the right guy, I would predict he ends up facing a lot more charges and that he ends up pleading guilty in the hopes of reducing his sentencing exposure. But what the feds might still charge and ultimately accept in any deal will be interesting to watch.

October 26, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

6a00d83451574769e201b7c9134b4d970b-320wiI recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic.  Alison's update is so detailed and interesting, I will need three posts to report all she has to report.  This first one covers what she calls "sentencing Victories":

The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.

Sentencing Victories

Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color.  The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear.  See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017).  Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).

When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines.  In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).

Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced.  Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years.  The remaining clients received significantly below-Guidelines sentences.  The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases.  As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison.  These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.

These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome.  The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere.  The FCJC’s litigation also changed the judges’ perspective on these cases.  Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.”  United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018).  In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018).  In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).

October 26, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, October 24, 2018

Latest federal sentencing of corrupt New York pol results in former state senate leader Dean Skelos getting 51 months

This New York Post piece, headlined "Dean Skelos sentenced to more than four years in prison," reports on the latest high-profile political corruption sentencing from a state that always seeks to keep the white-collar lawyers busy. Here are the details:

Dean Skelos, once one of the most powerful men in Albany, was sentenced to more than four years in prison Wednesday for using his political office to benefit his do-nothing son — who was noticeably absent from court for his father’s day of reckoning.

Manhattan federal Judge Kimba Wood said she would’ve given the one-time state Senate majority leader less than 51 months behind bars given his advanced age, but tacked on an extra three months because she found he lied on the witness stand.  “Your repeated mischaracterizations and lies about your conduct warrant a three-month enhancement,” Wood told the 70-year-old disgraced pol.

Dean’s son, Adam Skelos, who was convicted alongside him at their retrial in July, was nowhere to be found in court, underscoring the father and son’s strained relationship. Adam will be sentenced later Wednesday afternoon.

In begging for leniency, Dean told the judge he hoped to one day repair their bond. “My son, Adam, I love him more today than yesterday,” he said, his voice cracking. “I always try to protect him and I failed. Although our relationship is strained, I hope one day it will be restored.” Dean also asked Wood to go easy on his only child. “I hope that you show him mercy so that he can be the father he wants to be,” Dean said.

The Long Island Republican, and Adam, 36, were convicted at their retrial in July of strong-arming companies seeking help from Dean into giving Adam no-show jobs and consulting gigs. The pair was first convicted in 2015, but the case was tossed on appeal — paving the way for the politician to take the stand in his own defense in July....

The feds had asked the judge — who sentenced Dean to five years after the first trial — to take it up a notch to at least six-and-a-half years. A lawyer for Dean asked for leniency, saying the case has already taken a severe toll on the once-powerful politician, including straining his relationship with Adam. Dean has also developed a drinking problem due to the stress, his lawyer said.

Adam Skelos was previously sentenced to six-and-a-half years in prison after the judge said the trial showed that he had “no moral compass.” Adam, who is expecting a second child with his fiancée next month, has also asked for leniency, saying the judge’s harsh words have forced him to seek help and to change.

As Senate majority leader, Dean Skelos served as one of the so-called “three men in a room” — the others being Gov. Andrew Cuomo and longtime state Assembly Speaker Sheldon Silver, who was sentenced in July to seven years for corruption.

October 24, 2018 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Tuesday, October 23, 2018

Terrific discussions of guideline commentary and agency issues in the Sixth Circuit (while a defendant loses appeal again)

Yesterday a Sixth Circuit panel handed down an interesting and intricate opinion in US v. Havis, No. 17-5772 (6th Cir. Oct. 22, 2018) (available here), that likely will be of even greater interest to administrative law gurus than to sentencing fans.  The start of the opinion for the court authored by Judge Thapar frames and sets up what follows:

What we do is sometimes less important than how we do it.  The United States Sentencing Commission has the power to promulgate the Sentencing Guidelines.  But Congress has limited how it may exercise that power.  Those limits are important — not only because Congress thinks so, but because they define the Commission’s identity in our constitutional structure.

Jeffery Havis claims that the Commission has disregarded those limits.  And he may have a point.  But a prior published decision of our court requires that we reject this part of his argument.  Following that precedent and finding Havis’s other arguments unavailing, we affirm his sentence

For the defendant, what follows must be especially discouraging: he loses the appeal 2-1 ,and the two votes against him seem to agree that his arguments are compelling but foreclosed by circuit precedent that can only be reviewed via an en banc proceeding. For administrative law gurus, there are many pages with thoughtful judges debating the pros and cons of whether Auer deference presents constitutional problems in this context. As a sentencing fan, I found this passage from Judge Thapar (among many others in all the opinions) notable:

[I]n criminal cases, ambiguity typically favors the defendant.  If there is reasonable doubt, no conviction. In re Winship, 397 U.S. 358, 364 (1970). And if a statute is ambiguous, courts construe the statute in the criminal defendant’s favor.  E.g., United States v. Santos, 553 U.S. 507, 514 (2008) (describing the “venerable” rule of lenity).  But not here. Auer would mean that rather than benefiting from any ambiguity in the Guidelines, Havis would face the possibility of more time in prison than he otherwise would.  So in this context, Auer not only threatens the separation of powers but also endangers fundamental legal precepts as well.  See Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 732–33 (6th Cir. 2013) (Sutton, J., concurring) (highlighting problems with requiring the rule of lenity to bow to Auer deference); see also Perez v. United States, 885 F.3d 984, 990–91 (6th Cir. 2018) (suggesting that the rule of lenity might apply in considering sentencing enhancements under the Armed Career Criminal Act).

For both sentencing and administrative law fans, Havis is a must read.

October 23, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 20, 2018

Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing

This new NBC News piece, headlined "Paul Manafort's health and age could help shorten his sentence," reports on the notable recent court appearance of a former presidential campaign manager and highlights how it could impact his upcoming sentencing. The piece is authored by Danny Cevallos, an MSNBC legal analyst, and here are excerpts:

Former Trump campaign manager Paul Manafort appeared in a Virginia federal court Friday in a wheelchair, missing his right shoe, and appearing visibly grayer.  His legal team advised Judge T.S. Ellis that Manafort was dealing with “significant” health issues related to his confinement, and asked the court to expedite his sentencing so that he could be transferred to a facility better equipped to take care of him.

There’s no question that incarceration has negative health effects.  It’s also likely part of a wise strategy for Manafort’s defense team to make these health issues known to the judge well in advance of the sentencing hearing.  Manafort’s age and infirmity can bolster a defense argument to the judge for a significant reduction in his sentence.

Federal judges are permitted to consider a defendant’s advanced age and health issues in order to impose fair punishment and provide essential medical care.  Following an amendment to the Federal Sentencing Guidelines in 2010, the defendant’s age and physical condition, including his physique, may be relevant in reducing a sentence.  However, this is only if the condition is unusual and distinguishable from other cases.  An extraordinary physical impairment or a seriously infirm defendant can justify granting home detention as a less costly option than imprisonment.  The guidelines permit the court to consider alternative forms of incarceration for such an offender if those alternatives are “equally efficient” as prison.

It’s not clear what health condition confined Manafort to a wheelchair with only one shoe on Friday.  The court may consider a defendant’s need for medical care when fashioning a sentence.  Courts have considered a variety of conditions during sentencing that can affect the feet, including diabetes, and gout.  Still, Manafort’s defense team should be prepared to show that these ailments are extraordinary, and they cannot be treated adequately by the Bureau of Prisons.

The Department of Justice has recognized that the aging process accelerates for prisoners.  Elderly prisoners such as Manafort are more vulnerable to predators. They require special physical accommodations in a place that is not designed for special accommodation.  According to the DOJ, the annual cost of incarcerating elderly prisoners has risen to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population....

Elderly defendants are substantially less likely than younger offenders to commit new crimes after they are released.  The U.S. Sentencing Commission reported that over an eight-year period, only 13.4 percent of offenders age 65 or older were rearrested compared to 67.6 percent of offenders younger than age 21 when they were released.  Of course, expect the prosecutors to point out that after he was originally charged and out on release, Manafort committed new obstruction crimes by trying to influence witnesses. The government will surely counter that Manafort is one of those rare older offenders who is likely to commit new crimes — because he already did.

I am pleased this piece highlights the (too-often-ignored) 2010 revisions to the USSG policy statements concerning age and physical impairments as a possible relevant basis for a departure from the applicable guidelines.  But, as federal practitioners know, the guideline policy statements about departures are often ignored because judges have broad general authority to vary based on statutory 3553(a) factors regardless of what the guidelines say.  And, not to be forgotten, as reported in this prior post, Manafort's plea agreement caps his sentencing exposure at 10 years, but includes a calculation of his estimated "Sentencing Guidelines range [at] 210 months to 262 months' imprisonment."

Some prior related posts:

October 20, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Friday, October 19, 2018

Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car

I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country.  This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:

A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.

Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.

Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....

Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.

Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....

In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.

This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:

Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over.  A search of Beadle’s car revealed 2.8 pounds of marijuana.

Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole.  Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....

In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found.  Out of all the drug dispositions, about three in five were faced by African Americans.

That discrepancy goes up when looking only at guilty pleas.  The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.

October 19, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (5)

Thursday, October 18, 2018

Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought

This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:

By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.

As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”

Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.

Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”

The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.

UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."

October 18, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Tuesday, October 09, 2018

Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments

As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act.  Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link.  Helpfully, this additional post from SCOTUSblog provides these highlights:

In Stokeling v. United States, about whether a state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” under the ACCA.

This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)

“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”

Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.

Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.

At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”

In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.

The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.

Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.

Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)

Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.

October 9, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, October 08, 2018

First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history

A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act.  The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. StittHere are the basics on these cases via SCOTUSblog coverage:

Stokeling Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Argument preview: Do "slight force" robberies count for enhancing Armed Career Criminal Act sentences? by Rory Little

Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Argument preview: What vehicle burglaries, if any, count for enhancing Armed Career Criminal Act sentences? by Rory Little

October 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 04, 2018

En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge

If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here).  Here is part of the start of the majority opinion:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague.  As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).  The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds.  In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed....  In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague.  Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).

On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague.  As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....

The obvious (and decisive) question, then: Which is it here — categorical or conduct-based?  Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.”  Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”  Hooper v. California, 155 U.S. 648, 657 (1895)....

Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be.  Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. 

The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury.  The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.  Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes.  Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.

October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Wednesday, October 03, 2018

"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"

The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute.  Here is how it gets started and part of its conclusion:

Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years.  Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor.  Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.

The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances.  This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....

Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.

The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country.  Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma.  State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.

But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options.  Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.

October 3, 2018 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Monday, October 01, 2018

California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly

In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws.  This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:

Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.  The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.

For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.

The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society.  State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.

Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1.  But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....

Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide.  The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....

On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules.  “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday.  “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

October 1, 2018 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 25, 2018

"Safe Injection Sites and the Federal 'Crack House' Statute"

Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post.  Here its abstract:

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws.  A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision.  They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths.  To date, however, no U.S. city or state has sanctioned a safe injection site.  Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs.  This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

Efforts to start a safe injection site are currently underway in at least 13 cities and states.  Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site.  There is just one small problem.  They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises.  The Department of Justice has not yet taken a formal position on safe injection sites.  But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”

Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics.  Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear.  In this article, I argue that assumption is wrong.  Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites.  Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.”  This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations.  But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.

September 25, 2018 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, September 24, 2018

Details on not yet complete sentencing of Bill Cosby

The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts: 

In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.

The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward.  But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.

Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004.  “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”

But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said.  She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....

Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence.  If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.

Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases.  “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.

Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of.  But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event.  In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.

In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....

Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making.  “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”

Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years.  (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...

Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”...  Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.

Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....

Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity.  A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.

His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.

Prior related posts:

September 24, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

6a00d83451574769e201b8d28f7af6970c-320wiVia email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, September 20, 2018

"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"

The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:

When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?

At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.

“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”

Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.

And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....

Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.

“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....

Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”

Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”

Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.

Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.

A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.

In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.

Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.

Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.

Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.

Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”

Prior related posts:

September 20, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, September 16, 2018

"A Defense of Modern Risk-Based Sentencing"

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

In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public.  In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk.  This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use.  It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.

Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing.  More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought.  The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.

September 16, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 07, 2018

US House passes broad rewrite of the federal definition of "crime of violence" without any hearings

While a number of seemingly popular federal sentencing reform bills and marijuana reform bills have waited years for a vote in one or another chamber of Congress, the "Community Safety and Security Act of 2018," H.R. 6691, was passed through the US House of Representatives this morning barely a week after its introduction.  This new Reason piece provides some details under a full headline that captures the essentials: "House Passes Bill to Reclassify Dozens of Offenses as 'Crimes of Violence': Opponents say the bill, rushed to the floor without a hearing, would dangerously expand what's considered an 'aggravated offense'":

Republicans in the House passed a bill this morning that would reclassify dozens of federal crimes as "crimes of violence," making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of overcriminalization.

The Community Safety and Security Act of 2018, H.R. 6691, passed the House by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud.

"Groups on the right and the left are deeply concerned about the bad policy in this bill and the unfair process through which it came to the floor," Holly Harris, the executive director of the U.S. Justice Action Network, said in a statement to Reason. "At a time when we have bipartisan support for criminal justice reforms that will safely reduce incarceration and better prioritize public safety, passing a bill that does just the opposite makes no sense at all."

In April, the Supreme Court ruled in Sessions v. Dimaya that the definition of a "crime of violence" used for federal immigration law — conviction under which can lead to deportation proceedings — was unconstitutionally vague. House Republicans crafted the bill, they say, in response to the Supreme Court's recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill "would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses."...

The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation "expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses."...

Rep. Karen Handel (R-Ga.) claims the bill is urgently needed to keep, as its name suggests, communities safe from violent crime.  "We don't have the privilege to squabble over hypotheticals that have no bearing on the application of this law," Handel said on the House floor.  "I can assure my colleagues this bill is not overly broad. It's not a dangerous overexpansion. Instead, it's a carefully crafted response to the Supreme Court's recommendations."

Democrats and criminal justice groups also objected to the speed at which the bill sailed to the House floor.  It was introduced just a week ago and did not have a single hearing or markup prior to today's vote. The House Liberty Caucus calls the process "farcical."

In a tweet, Jason Pye, the vice president of legislative affairs at the libertarian-leaning group FreedomWorks, writes: "In my view, this bill is mostly politics.  I agree that Dimaya requires a fix, but this bill has flaws that could have, and should have, been worked out in committee markup.  It's shameful that this bill was handled this way."

Especially because the definition of "crime of violence" under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House. I am also amazed at how quickly complicate legislation can be moved through part of the legislative process when there is a political will to do so (even when it is unclear whose political will is in operation).

September 7, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Tuesday, September 04, 2018

Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)

A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans.  Here are the basics:

When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”

Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.

On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.

Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.

Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.

The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.

Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”

Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.

As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld.  Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read).  Here are some key passages therein (emphasis in original):

Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate.  Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.  As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.”  Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....

[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories.  Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice.  In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.

The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive.  It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states.  Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.

Download Matthews v. Cain excessiveness opinion

September 4, 2018 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, September 02, 2018

Did the Buffalo Bills cause the Oklahoma City bombing?

The quite silly question in the title of this post is prompted by this remarkable new Politico Magazine piece headlined "How Football Fed Timothy McVeigh’s Despair: The Oklahoma City bomber was once a promising young Gulf War veteran.  His slide into isolation and extremism happened to dovetail with the fate of his beloved Buffalo Bills."  For a host of reasons, I recommend the full Politico piece (which comes from a book by Sam Anderson), which provides context for this closing excerpt from the article:

Just four weeks after that disastrous Super Bowl loss [by the Bills in 1993], McVeigh found and latched onto the cause that would define the rest of his life. A group of citizens in Waco, Texas — a religious cult called the Branch Davidians — had refused to surrender its weapons to the federal government. A standoff ensued, and McVeigh became obsessed. He read and watched everything he could, then loaded his car with anti-government pamphlets and bumper stickers (“When guns are outlawed, I will become an outlaw”) and drove down to see the action firsthand.

He sold his paraphernalia to other militants and gave interviews to the news media in support of the persecuted.  When, some weeks later, the Waco situation went terribly wrong — the FBI set fire to the compound, killing almost everyone inside — McVeigh watched the news footage and wept.  That injustice became the core of his case against the United States government. Revenge became his life’s mission.

I am not saying that Timothy McVeigh bombed Oklahoma City in 1995 because the Buffalo Bills lost four Super Bowls in a row. (They made it back in 1994 and — incredibly — lost that one too, cementing their reputation as the greatest losers in NFL history.)  Such a claim would be absurd. Human motives are incalculably complex.  But that Buffalo heartbreak was one of the many shadows that fell across McVeigh’s life between his unstable childhood and his perpetration of mass murder in Oklahoma City.

The almost unbelievable failure of the Bills, and the civic pain it caused, amplified his native pain. After McVeigh returned from the Gulf War, his Bills fandom was one of the few positive social networks he was able to plug back into, one of the most powerful, stable, visceral communities to which he unquestionably belonged.  Its failure was devastating, to him and to everyone else in the area.  To this day, even well-adjusted Buffalonians walk around imagining alternate lives in which their team actually won four Super Bowls in a row, becoming arguably the greatest team in NFL history, putting the city on the map in a way it otherwise never could have dreamed of.

Or at least won one Super Bowl, securing a happy little foothold in history. Instead, that 1990s Bills team is remembered as a tragic joke.  It’s easy to pretend that sports doesn’t matter in real life, but for many millions of people, it does.  It matters profoundly, every day.  After Super Bowl XXVII, Timothy McVeigh went looking for somewhere else to be, something else to do — something bigger, more meaningful, more real. Reality had failed him, in so many ways, so he went off to pursue his own fantasy of justice, very far from Buffalo.

Criminal justice fans know that, among other echoes, the Oklahoma City bombing played a key role in federal habeas reforms that still matter profoundly every day to just about everyone serving long prison terms.  But beyond spotlighting one legal echo of the worst home-grown terror mass murder of modern history, I thought this article serves as an interesting and important reminder that the roots of evil and violent behavior are often quite varied and unpredictable.

September 2, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Wednesday, August 29, 2018

Texas jury hands down 15-year prison term after convicting police officer of murder for shooting unarmed teen

As reported by CNN here under the headline "Ex-officer sentenced to 15 years in Texas teen's shooting death," a Texas jury that handed down a notable murder conviction yesterday followed up today with a notable sentencing determination. Here are some details:

A former Texas police officer was sentenced to 15 years in prison Wednesday for the shooting death of an unarmed black teen last year in the Dallas suburbs.

A jury convicted former Balch Springs Officer Roy Oliver, 38, of murder on Tuesday for killing 15-year-old Jordan Edwards.  Jurors returned to court Wednesday for his sentencing, where prosecutors sought at least 60 years, while the defense argued for 20 years or less.

Dallas County District Attorney Faith Johnson called Oliver a "killer in blue" who violated his oath to protect citizens.  Her colleague, Michael Snipes, made the reference to Mr. Hyde, the violent side of Dr. Jekyll in Robert Louis Stevenson's novella.  Defense attorney Bob Gill argued that his client, who fired into a vehicle carrying Edwards had to decide quickly how best to protect his partner.

The rare guilty verdict in the trial of a police officer stunned relatives, prompting gasps and sobs in the courtroom. Most police-involved shooting deaths, such as Philando Castile in Minnesota and Alton Sterling in Louisiana, have ended in acquittals or no charges despite national protests condemning police brutality.  "We don't want another parent to have to go through what this family has had to deal with," Jordan's family attorney, Daryl Washington, said on Tuesday.  "This case is not just about Jordan. It's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every African-American... who have been killed and who have not gotten justice."...

Convictions such as Oliver's are still a rarity mostly because when an officer says the person flashed a gun or made a sudden move, jurors tend to side with them, said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.  "At the end of day, officers in their badge and uniform enjoy the benefit of the doubt," Clarke said last year....

Few police officers face trial in shooting deaths, and even fewer are convicted.  In December, former South Carolina officer Michael Slager was sentenced to 20 years in federal prison in the 2015 shooting death of Walter Scott. Slager's 2016 state murder trial ended in a mistrial.

August 29, 2018 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Thursday, August 23, 2018

Reality Winner's agreed-upon (and record-long and below-guideline) 63 month sentence for leaking classified information becomes a reality

In this post a few months ago, I wondered about how Reality Winner, the former Air Force linguist prosecuted for leaking classified information, came to an agreement with federal prosecutors that fixed her federal sentence at 63 months in prison."   This local article, headlined "Reality Winner receives record-setting prison sentence," reports on the sentencing promised in this plea agreement becoming a reality. Here are some details:

Reality Winner on Thursday received a record-setting prison sentence — five years and three months behind bars — for leaking a top-secret government report about Russian meddling in the 2016 election. “I sincerely apologize and take full responsibility for my actions,” the former National Security Agency contractor told Chief U.S. District Court Judge J. Randal Hall in a federal court in Augusta. “In particular, I want to apologize to my family.”

Bobby Christine, U.S. attorney for the Southern District of Georgia, told reporters after the sentence hearing that the government had determined Winner’s actions “caused exceptionally grave damage to U.S. national security.”

“That harm,” he said, “included but was not limited to impairing the ability of the United States to acquire foreign intelligence information similar to the information disclosed.”

“Make no mistake, this was not a victimless crime,” he also said. “Winner’s purposeful violation put our nation’s security at risk, not in a speculative way or hypothetical way but in a very real way, a very direct way.”

Like the judge in the case, Christine said Winner’s sentence is meant to serve as a deterrent. “Winner will serve a term of incarceration that will give pause to others who are entrusted with our country’s sensitive national security information and would consider compromising it,” he said. “Anyone else who may think of committing such an egregious and damaging wrong should think both of the prison sentence imposed today and the very real damage done.”

Winner faced up to 10 years in prison for her crime. But her plea deal with prosecutors called for her to serve five years and three months behind bars. That is longer than anyone else has been sentenced for an “unauthorized disclosure to the media,” federal prosecutors said in a court filing this month. Both Winner’s attorneys and the prosecutors urged Hall to agree to the sentence spelled out in her plea deal.

“The government advises the court that despite the agreed-upon sentence being below the applicable guidelines range, it would be the longest sentence served by a federal defendant for an unauthorized disclosure to the media,” the prosecutors said in their court filing.

The prosecutors added avoiding a trial would prevent them from having to reveal sensitive government information in court. “The agreement reflects a fair resolution of the defendant’s criminal culpability, especially when balanced against the further harm to the national security that would likely result from a trial,” the prosecutors said.

The prosecutors also cited several other similar federal cases in which defendants received shorter prison sentences. In 2013, former FBI bomb technician Donald Sachtleben was sentenced to 43 months in prison for leaking classified information to the Associated Press about a foiled bomb plot in Yemen. That same year, former CIA officer John Kiriakou was given a 30-month sentence for revealing to a freelance journalist the identity of an undercover CIA agent. Two years later, former CIA officer Jeffrey Sterling got a 42-month sentence for leaking to The New York Times classified information about a secret operation to disrupt Iran’s nuclear weapons program.

Winner, 26, the prosecutors said, mailed a copy of a NSA document to The Intercept, an online publication. The Intercept published an article based on the report, saying Russian military intelligence sent spear-phishing emails to more than 100 local election officials and launched a cyberattack against a Florida-based voting software supplier that contracts in eight states.

The Press Freedom Defense Fund, which provides legal support to journalists and whistleblowers and is a program of The Intercept’s parent company, called Winner’s sentence “completely unjust.” “Demonstrating her passion for her country, she heroically — at great personal risk — alerted fellow Americans to vital information that Russia had tampered with the 2016 U.S. elections,” said the Press Freedom Defense Fund, which helped with the appeal of whistleblower Chelsea Manning, a former soldier convicted of violating the Espionage Act. “Her selfless act makes her a true patriot, not a criminal.”

Prior related post:

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right? 

August 23, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 21, 2018

"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"

The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans.  Here is the abstract:

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism.  This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality.  This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts.  Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency.  Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.

August 21, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Monday, August 20, 2018

Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years

It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case.  This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:

When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.

The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....

The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.

The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days.  The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.

During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...

Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...

Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...

Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.

Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....

One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate.  “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”

He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.

In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry.  (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)

August 20, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (12)

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN.  Here is its abstract:

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, August 15, 2018

Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions

As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague.  Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort.  The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.”  Here are some excerpts:

Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress.  Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....

About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....

While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying.  Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.

Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year.  The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities.  In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic.  Only 4.4 percent were charged as armed career criminals....

During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....

The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.

Prior related posts:

August 15, 2018 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (2)

Tuesday, July 31, 2018

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Why Is It Wrong To Punish Thought?"

The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery.  In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.

The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished.  The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. 

In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed.  The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds.  The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force.  Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.

July 31, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)