Sunday, February 17, 2019

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

February 17, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Saturday, February 16, 2019

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 13, 2019

Illinois prosecutors appealing 81-month sentence given to former Chicago cop Jason Van Dyke for murder of Laquan McDonald

In the federal system, sentencing appeals brought by prosecutors are relatively rare but not always exceptional.  My sense is that prosecutorial appeals of sentences are even rarer in most state systems, and a state sentencing appeal brought this week by Illinois prosecutors comes in a case that is exceptional for all sort of reasons.  This extended Chicago Tribune article, headlined "Attorney general, special prosecutor challenge Jason Van Dyke’s sentence in petition to state Supreme Court," provides lots of background details and here are excerpts:

Special prosecutors and the Illinois attorney general’s office want the state’s highest court to order a resentencing for Jason Van Dyke, a move that if granted could result in a much harsher prison term for the former Chicago police officer convicted in the slaying of 17-year-old Laquan McDonald.

Their petition, filed Monday, does not explicitly target the length of the 6¾-year sentence, which many activists criticized as lenient.  But Kane County State’s Attorney Joseph McMahon, appointed to handle the Van Dyke case, and Attorney General Kwame Raoul argue that Judge Vincent Gaughan sentenced Van Dyke under improper legal guidelines, and note that a significantly longer sentence would be justifiable under state law.

“I recognize that a trial judge’s discretion in sentencing is to be given great deference,” Raoul said at a news conference Monday. “However, it is in the interest of justice that we do all within our power to make sure that such exercise in discretion be applied consistent with the mandates of law, no matter who the defendant and no matter who the victim.”

In response, Van Dyke’s attorneys said the prosecutors’ motivations were plainly political. “This case has come to represent all the wrongs, perceived wrongs, of the Chicago Police Department, and it’s fallen upon Jason Van Dyke as a person,” attorney Jennifer Blagg said. “So what he represents politically is why this is happening.”...

Van Dyke, 40, was convicted last year of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of McDonald.  He was sentenced last month to 6¾ years in prison.  Gaughan sentenced Van Dyke only on the second-degree murder conviction, ruling that it was the more serious offense and that the aggravated battery counts should “merge” into it for purposes of sentencing....

But the prosecutors’ petition argues that Illinois law actually makes aggravated battery with a firearm the more serious offense, and therefore the state Supreme Court should order Gaughan to resentence the ex-patrol officer on those convictions instead.  The court should also direct Gaughan to determine which of the 16 gunshot wounds caused “severe bodily injury” and sentence him to consecutive prison terms for those counts, they state.

Prosecutors have argued that at least two of the wounds caused that kind of injury, which, the petition contends, would mean Van Dyke would face a minimum sentence of 18 years: six years for each of those two wounds, plus six more years for the other 14 counts.  An aggravated battery with a firearm conviction carries a sentence of six to 30 years in prison.  The range for second-degree murder is four to 20 years, but a judge can impose probation instead.

If the state Supreme Court chooses to consider the petition, there are a few potential outcomes, said longtime criminal defense attorney Mark Lyon.  “They will either have to say, ‘Judge Gaughan, you have to resentence this person,’ or they have to say (they) were wrong in the case where they said second-degree murder was always less serious than aggravated battery with a firearm,” Lyon said, referring to a previous ruling.

The court potentially could also order Gaughan to resentence Van Dyke on the aggravated battery but not make him rule on which of the 16 shots caused “severe bodily injury,” Lyon said, which would open the door for Gaughan to impose a prison term the same as the previous sentence, or slightly shorter.

But even in that scenario, Van Dyke would serve slightly more prison time.  Inmates convicted of aggravated battery with a firearm must serve at least 85 percent of their sentences — far higher than the 50 percent required by a second-degree murder conviction.  “It’s quite unlikely that Mr. Van Dyke comes out of this without some kind of upward modification of his sentence,” Lyon said. “How much, who knows.”

Van Dyke’s attorneys plan to file an objection to the prosecutors’ motion. The Supreme Court is not obligated to accept the prosecutors’ petition at all, and there is no time frame in which it must make a decision.

Prior related post:

February 13, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, February 12, 2019

Joaquin "El Chapo" Guzmán found guilty on all 10 federal counts now facing LWOP sentence ... but surely could still provide substantial assistance

As reported in this NPR piece, headlined "'El Chapo,' Notorious Drug Kingpin, Found Guilty After Dramatic Trial In New York," the federal government secured high-profile drug convictions today in New York.  Here are some details:

After a long trial held under heightened security at the Brooklyn, N.Y., federal court, a jury has found Joaquín "El Chapo" Guzmán, one of the world's most notorious drug kingpins who led Mexico's Sinaloa cartel, guilty on all ten counts related to drug trafficking. He 61-year-old faces the possibility of life in prison.

Tuesday's verdict ended a dramatic trial that started in November and was filled with explosive testimony from Guzmán's former cartel associates. It included testimony from more than 50 witnesses, many of whom described Guzmán's use of violence against his enemies.

Guzmán faced 10 charges in the indictment, including engaging in a criminal enterprise — which in itself comprised 27 violations, including conspiracy to commit murder. Other charges included using firearms and manufacturing and distributing cocaine, heroin and other drugs.

Last week, Judge Brian Cogan gave jurors about three hours of instructions for their deliberations. He said he was confident that they had followed his instructions not to read or watch news about the case. The entire jury has been anonymous for their protection. At one point, the judge told the foreperson to sign notes using her name but then corrected that instruction and told her to use her juror number instead to keep her identity secret.

The jurors — four men and eight women — deliberated for days, asking for lengthy testimonies and whether ephedrine was considered methamphetamine.

In laying out their case, prosecutors spent 11 weeks calling witnesses, while the defense took 30 minutes and brought just one witness to the stand. The prosecution and defense delivered their final arguments to the jury in January.

Jeffrey Lichtman, one of Guzmán's defense lawyers, gave an animated presentation, banging the podium, pacing before the jurors and patting his client on the shoulder.... The prosecution had produced a "scripted event," he said, with cooperating witnesses who "lie, steal, cheat, deal drugs and kill people." And if Guzmán was convicted, all of those people would be released, he said.

Lichtman cast doubt on whether some of the murders that witnesses described ever happened. He called Guzmán "the rabbit" that Mexican authorities were chasing when the true mastermind behind the Sinaloa cartel was Ismael "El Mayo" Zambada....

Assistant U.S. Attorney Amanda Liskamm led the prosecution's rebuttal, urging jurors not to fall for the defense's smear. "The day cocaine conspiracies are made in heaven is the day we can call angels as witnesses," she said....

Prosecution witnesses offered testimony that swung from the bizarre to the shocking. According to testimony, he had a diamond-encrusted pistol and a gold-plated AK-47; he kicked off a cartel war after a rival refused to shake his hand; he and a mistress once fled naked through a secret tunnel under a bath tub; he escaped from a Mexican prison with the help of his wife, Emma Coronel Aispuro; and, in one of the most controversial allegations, he bought off Enrique Peña Nieto for $100 million — a claim the former Mexican president has denied....

Guzmán's 29-year-old wife attended the trial nearly every day, even as a mistress testified. She told The New York Times, "I don't know my husband as the person they are trying to show him as." The weeks also brought details of the sophisticated methods that the cartel used to move its contraband, from secret landing strips to container ships and submarines. People who stood in the way were allegedly bribed, kidnapped, tortured or killed....

Guzmán already had humiliated Mexico by escaping from prison twice. Once he made a getaway in a laundry cart. And then there was the mile-long tunnel that began under his maximum security prison cell's shower, a passageway that he told Penn had required sending engineers to Germany for training.

The cartel reportedly built some 90 tunnels between Mexico and the United States. After a long manhunt, he was recaptured in 2016 by Mexican authorities on the outskirts of Los Mochis and extradited to the United States the next year. He arrived on U.S. soil and pleaded not guilty to U.S. federal charges.

Guzmán showed in Mexico that he can devise ways to escape from prison, but I am hopeful US authorities will not have similar prison administration difficulties.  But, as the title of this post is meant to suggest, there is another way Guzmán could now try to work his way out of federal prison, namely by providing substantial assistance in the prosecution of others.

Ultimately, I am not sure Guzmán will be eager even at this point to cooperate with the feds, and I would be quite surprised if the feds would be willing to offer any significant sentencing discount for his cooperation.  But here it seems worth flagging the reality that, in a federal sentencing system that rewards defendants who cooperate, the greatest potential sentencing rewards can go to the most guilty of defendants who have the most potential information to offer.  Guzmán, who I believe is now facing a mandatory life sentence, would seem to be the poster child of the most guilty of defendants with the most potential information to offer.

February 12, 2019 in Celebrity sentencings, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Monday, February 04, 2019

Highlighting how much punishment comes with the misdemeanor process

97804650938091LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

February 4, 2019 in Collateral consequences, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, February 01, 2019

"Unusual: The Death Penalty for Inadvertent Killing"

The title of this post is the title of this paper authored by Guyora Binder, Brenner Fissell and Robert Weisberg that was just posted to SSRN. Here is its abstract:

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed?  More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently?  This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life.  Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony but has not yet addressed the culpability required for execution of the actual killer.

In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death.  Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States.  Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016).  This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

February 1, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics | Permalink | Comments (0)

Thursday, January 31, 2019

US Sentencing Commission releases new report titled "What Does Federal Economic Crime Really Look Like?"

Cover_2019-econ-crimeContintuing its steady production of research reports to start 2019, the US Sentencing Commission yesterday released this 87-page report under the title ""What Does Federal Economic Crime Really Look Like?". This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication provides data on the broad variety of economic crime sentenced under §2B1.1.  The Commission undertook a project to systematically identify and classify the myriad of economic crimes sentenced under §2B1.1 using offenders' statutes of conviction and offense conduct.  The Commission used this two-step methodology to assign the 6,068 offenders sentenced under §2B1.1 in fiscal year 2017 to one of 29 specific types of economic crime.

This publication provides, for the first time, data from this new project as well as a brief description of the study's methodology.

Key Findings

  • The economic crime guideline (§2B1.1) accounts for approximately ten percent of the federal caseload and encompasses a wide variety of conduct.

  • Embezzlement and theft offenders consistently accounted for about one-quarter of all economic crime offenders, ranging from 24.6 to 28.3 percent during the five years studied.  Financial institution fraud and government benefits fraud offenders have also been among the top five most prevalent type of economic crime offenders.

  • The offense severity, as measured by several guideline enhancements, varied significantly across the 17 specific types of economic crime that were the focus of this report.  In particular, median loss amounts varied substantially, with four specific offense types involving median losses far exceeding the median loss amount for all economic crime offenders of $131,750: securities and investment fraud ($2,105,620), health care fraud ($1,086,205), mortgage fraud ($999,721), and government procurement fraud ($739,455) and two specific offense types with the lowest median loss amounts: mail related fraud ($1,815) and false statements ($0).  These differences are particularly noteworthy because the loss calculation is the primary driver of the guideline calculation under §2B1.1.

  • The application rates of other guideline provisions measuring offense severity and offender culpability also varied significantly across the specific types of economic crime. For example, the victims enhancement applied in 78.1 percent of securities and investment fraud compared to 2.4 percent of false statements offenses, and the sophisticated means enhancement applied in 37.5 percent of advanced fee fraud compared to 0.6 percent of mail related fraud.

  • The average sentences varied significantly across the specific types of economic crime. Securities and investment fraud offenders received the longest average sentences at 52 months, more than twice as long as the average sentence for all economic crime offenders of 23 months.  False statements offenders received the shortest average sentence at five months.

  • Offender characteristics also differed across economic crime types.  For example, White offenders accounted for a substantial majority of securities and investment fraud (79.9%), computer related fraud (70.5%), and government procurement fraud (62.3%), while Black offenders accounted for the largest proportion of tax fraud (55.0%), identity theft (49.4%), and credit card fraud (45.0%).

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Wednesday, January 30, 2019

Texas completes first execution of 2019

As reported in this local article, "Robert Jennings was on Texas’ death row for nearly 30 years.  On Wednesday, the 61-year-old was put to death in the nation’s first execution of 2019."  Here is more:

Jennings was sentenced to death in the 1988 murder of Houston police officer Elston Howard.  According to court records, Jennings walked into an adult bookstore to rob it, and Howard was there arresting the store clerk for a municipal violation.  The clerk testified that Howard had no time to even reach for his gun before Jennings shot him multiple times, killing him.

Less than an hour after his final appeals were rejected by the U.S. Supreme Court on Wednesday, Jennings was injected with a lethal dose of pentobarbital at 6:15 p.m. in the state's execution chamber in Huntsville.  He was pronounced dead 18 minutes later.  In his final words uttered strapped to a gurney, he told his friends and family it was "a nice journey."

"To the family of the police officer, I hope this finds you peace," he said. "... Enjoy life's moments because we never get them back."

The lengthy stretch of time between Jennings' 1989 sentencing and his execution shines a light on the complications that can arise during the appeals process in the face of constantly evolving death penalty law.  In their last attempt to halt Jennings' execution, his lawyers zeroed in on changes in how death penalty juries weigh "mitigating evidence"— factors that can lessen the severity of the punishment that are largely based on the defendant's background, like an abusive childhood or intellectual disability.

January 30, 2019 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Sunday, January 20, 2019

"Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"

The title of this post is the title of this important new article authored by Joseph Kennedy, Isaac Unah and Kasi Wahlers now available via SSRN. Here is its abstract:

Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish.  But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that?  This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs.  Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest.  Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012.  The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.

This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs.  Offenders of color are by and large not more serious offenders in terms of quantity.  They just possess and sell drugs that are the most frequent target of arrest.  Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.”  Racial disparities might vanish or reverse if we were to make as many meth/amphetamine and heroin arrests as crack cocaine arrests.

After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons.  Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest.  A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

January 20, 2019 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 19, 2019

Former Chicago cop Jason Van Dyke sentenced in state court to only 81 months for murder of Laquan McDonald

As reported in this lengthy local article, headlined "Jason Van Dyke given relatively lenient sentence of under 7 years in prison for Laquan McDonald shooting," a high-profile killer seems to get a relative low sentence in an Illinois courtroom yesterday. Here are some of the details:

Former Chicago police Officer Jason Van Dyke was sentenced Friday to nearly seven years in prison for the fatal on-duty shooting of Laquan McDonald, bringing to a close one of the most racially fraught and socially significant chapters in recent Chicago history.  Van Dyke remained stoic as Cook County Circuit Judge Vincent Gaughan announced the sentence about 5:30 p.m. after a long day of often emotional testimony. Moments later, Van Dyke’s teenage daughter seated in the gallery burst into tears.

But the relatively lenient six-year, nine-month sentence for second-degree murder counts as a victory for Van Dyke, who could be out of custody in as little as three years, his attorney told reporters.  “He truly felt great,” the attorney, Daniel Herbert, said of Van Dyke. “He was not just relieved, he was happy. It’s the first time I’ve seen the guy — honestly since this whole ordeal started — where he was happy. He’s certainly not happy about going to jail. He’s certainly not happy about missing his family. But he’s happy about the prospect of life ahead of him.”

In October, Van Dyke became the first Chicago police officer in half a century to be convicted of murder in an on-duty shooting.  A jury found him guilty on one count of second-degree murder and 16 counts of aggravated battery — one for each bullet that hit McDonald’s body in October 2014 as the teen walked away from police on Pulaski Road while holding a knife. Graphic police dashboard camera footage of the shooting released more than a year later sparked weeks of chaos and political upheaval, exposing Chicago’s long-standing racial fault lines and exacerbating the already-fraught relationship between police and minority communities.

Though he had sought a sentence about three times lengthier, special prosecutor Joseph McMahon told reporters in the Leighton Criminal Court Building that justice had been served. “I understand the sentence is not exactly what the McDonald and Hunter families wanted,” said McMahon, who requested a prison term of 18 to 20 years.  “But the sentence, like the verdict, does hold the defendant accountable.”...

Gaughan imposed the sentence after a daylong hearing that drew tears from witnesses on the stand and from Van Dyke himself, who sat slouched at the defense table in a bright yellow jail uniform.

While predicting his sentence would disappoint “100 percent” of those in the courtroom, Gaughan made a number of key rulings in favor of the defense. In particular, he sentenced Van Dyke only for the second-degree murder conviction, meaning he will serve just half the sentence if he qualifies for day-for-day good-behavior credit. If instead the judge had sentenced him only on the aggravated battery convictions, Van Dyke could have been subject to a lengthier term behind bars. He also would have had to serve at least 85 percent of that sentence.

In fashioning his decision, Gaughan said the law required him to consider the most serious charge for which Van Dyke was convicted. Common sense, the judge found, dictated that be second-degree murder, not aggravated battery. However, Illinois law considers aggravated battery with a gun the more serious offense of the two, carrying stiffer penalties. “Is it more serious for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?” Gaughan said in explaining his reasoning.

Witnesses called by Van Dyke’s legal team at the marathon hearing said the public attention to the case has emotionally shattered his family. “My life has been a nightmare,” Van Dyke’s wife, Tiffany, said in a choked voice, echoing similar testimony from the former officer’s father, sister and 17-year-old daughter. “Life is torture. My heart is broken.”...

Toward the end of the hearing, Van Dyke himself stood and said the day he shot McDonald was the worst of his life. It was the first time he had ever had to fire his weapon in the line of duty, he said, bending his head down to read closely from a handwritten statement. “And I’m very proud of that fact,” he said. “… The last thing I wanted to do was to shoot Laquan McDonald.” Van Dyke said he “tried to make the right decision in a rapidly escalating, dangerous situation.”...

McDonald’s great-uncle, the Rev. Marvin Hunter, read from the witness stand a letter he wrote from the perspective of his grand-nephew, saying McDonald’s death devastated the family. The letter said Hunter used McDonald’s last paycheck from his construction job to buy the suit the teen was buried in.

The killing came just weeks before McDonald was to begin living under the same roof again with his sister and mother, who had overcome drug addiction, he said. “I was so happy for the possibility of that day,” the letter said. “However, Jason Van Dyke … robbed us of this.”

The letter ended with a request to punish Van Dyke for McDonald’s killing, arguing that the former officer had shown no remorse for his actions that night. “What happened to me can never be changed, but other young black men and women will not have to face Jason Van Dyke and his evil and selfish ways,” the letter said. “I’m a real victim of murder and that can never be changed. Please think about me and my life when you sentence this person to prison.”

While the many civilian complaints against Van Dyke were not introduced at trial, prosecutors on Friday called four witnesses — all African-American men — who one after another painted Van Dyke as an abusive, out-of-control officer protected by inept police oversight agencies. One man said Van Dyke choked him to try to get him to spit out a cough drop during a DUI stop. Another said the officer berated him using a racial slur.  A third said Van Dyke deserved prison time simply for the “chaotic” way he handled a traffic stop.

There are so many substantive and procedural elements to this case, one could probably write an entire law review article about the importance and impact of prosecutorial and judicial discretion as it operates within a controversial high-profile case like this one.  For now, I am just inclined to spotlight notable sentencing differences between this case and the arguably comparable case involving former South Carolina police officer Michael Slager who killed Walter Scott on camera.  Van Dyke was convicted by a jury in state court of second-degree murder, and then he was sentenced by a local judge to a prison term of 81 months (with it seems the possibility of released in around 40 months).  Slager, whose sentence was just affirmed on appeal, pleaded guilty to federal civil rights charges after a state jury could not reach a verdict, and then he was sentenced by a federal judge to a prison term of 240 months (with perhaps the possibility of being released in around 200 months).

Notably, I am not the only one noticing how state and federal sentencing justice can play out quite differently.  This notable new local article, headlined "Patti Blagojevich ‘speechless’ Van Dyke sentence is less than half her husband’s," begins this way:

As expected, a slew of political candidates rushed to react to the sentencing of Jason Van Dyke. And then there was Patti Blagojevich, wife of a now-disgraced and imprisoned Illinois governor.

“I am speechless,” Patti Blagojevich tweeted Friday. “A 17 year old is dead and the sentence is less than half of my husbands sentence for discussions with his staff and attorney about political fundraising.”

It could be another attempt to grab the attention of the last person who apparently can get former Gov. Rod Blagojevich out of jail early: President Donald Trump. And it comes after Patti Blagojevich last year made some other moves seemingly tailor-made to catch Trump’s eye, with an appearance on Fox News in which she slammed Obama. She also has tried to connect her husband’s case to Special Counsel Robert Mueller and Former FBI Director James Comey — favorite Trump targets.

Van Dyke’s 81-month sentence means the former Chicago police officer will likely serve a little more than three years in prison after shooting the 17-year-old McDonald 16 times in 2014.

Trump himself may have gotten Patti Blagojevich’s hopes up in December, when he tweeted about another TV interview she had done with Fox News, calling her “the wonderful wife” of the imprisoned governor. Patti retweeted the president, and that was the last tweet she had sent until Friday, more than a month later.

Rod Blagojevich, serving a 14-year sentence on corruption charges, is not due out of prison until May 2024. Though an appellate court tossed five of his convictions in 2015, federal prosecutors say he remains convicted “of the same three charged shakedowns” for which he was first sentenced in 2011.

January 19, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, January 16, 2019

"Mens Rea Reform and Its Discontents"

The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

January 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, January 15, 2019

Via distinctive 5-4 vote, SCOTUS concludes Florida robbery satisfies "physical force" requirement as Armed Career Criminal Act predicate

In this post last year, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  This cheeky question flows from the challenges and frustrations that surround trying to figure out which prior convictions do and do not serve as predicates for application of the federal Armed Career Criminal Act's 15-year mandatory minimum term.  And today the Supreme Court added still more color to its modern ACCA jurisprudence by handing down its decision in Stokeling v. US, No. 17-5554 (S. Ct. Jan. 15, 2018) (available here).  Here is how the majority opinion in Stokeling, authored by Justice Thomas, gets started:

This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  We conclude that it does.

Here is how the sole dissenting opinion in Stokeling, authored by Justice Sotomayor, gets started:

In Johnson v. United States, 559 U.S. 133 (2010), this Court ruled that the words “physical force” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as “force” for purposes of the common-law crime of battery.  Id., at 139–140.  This case asks whether Florida robbery requires such “physical force,” and thus qualifies as a “violent felony” under the ACCA, even though it can be committed through use of only slight force. See §924(e)(2)(B).  Under Johnson, the answer to that question is no.  Because the Court’s contrary ruling distorts Johnson, I respectfully dissent.

Among the reasons ACCA jurisprudence looks like a hellscape to me is that the 2010 Johnson case being debated in this ACCA case is different from the 2015 Johnson case that declared part of ACCA unconstitutionally vague.  (In The Good Place there are lots of Janets; in the ACCA bad place, it seems, there are lots of Johnsons.)

I may have more to say about the substance of the opinions in Stokeling in a future post, but for now I will conclude my highlight the unique line-up of Justices in the 5-4 split of votes:

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

Because Justice Kavanaugh is new to the mix, it is not saying much to say this is the first time this group of Justices have come together this way.  But I cannot recall many cases in which the Chief Justice was a fourth vote for a criminal defendant but Justice Breyer served as the key fifth vote for the government.  Interesting times.

January 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Wednesday, January 09, 2019

Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

January 9, 2019 in Advisory Sentencing Guidelines, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, January 08, 2019

US Sentencing Commission releases big new report on "Intra-City Differences in Federal Sentencing Practices"

Cover_intra-city-differencesThe US Sentencing Commission has just released its second big research report of the new year with this 138-page report titled "Intra-City Differences in Federal Sentencing Practices." (The main text of the report is less than 30 pages, with the other 100+ full of detailed appendices.)  This USSC webpage provides links, an overview and conclusions from the report:

Overview

This report examines variations in sentencing practices — and corresponding variations in sentencing outcomes — in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker.  The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average.

This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Conclusions

Although the trend of increasing differences among judges slowed after 2011, the increasing differences in sentencing practices first reported at the district level in the Commission’s 2012 Booker Report generally persist to this day, even within the same courthouse. In particular, the Commission finds that:

  • From the Booker to Gall Periods, 23 of the 30 cities had increases in their total spreads, and 22 of 27 cities (those with at least five judges in all three periods) had increases in their standard deviations.  From the Gall to the Post-Report Periods, 20 of the 30 cities had increases in their total spreads, and 16 of the 27 cities (those with at least five judges in all periods) had increases in their standard deviations, although the magnitude of the increases was less than the magnitude of the increases from the Booker Period to the Gall Period.

  • In terms of the overall changes during the 13 years, from the Booker Period to the Post-Report Period, 25 of the 30 cities saw a net increase in their total spreads and 23 cities of the 27 with reported standard deviations saw a net increase in their standard deviations.

  • Considering all 30 cities together as a representative sample of the country as a whole, the average total spreads for all 30 cities in the three periods increased from 18.2 in the Booker Period to 23.7 in the Gall Period to 27.6 in the Post-Report Period.  The average standard deviations for the 27 cities (those with at least five judges) grew from 5.8 to 7.7 to 8.3 during the same three periods.

  • In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

Once I have a chance to review this data a bit more, I may have more to say about its findings and other takeaways.  But it seems already worth noting that any justified concerns about data showing that "the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case" are at least a bit mitigated by the passage of the FIRST STEP Act.  Those defendants unfairly receiving longer sentences because their cases were assigned to distinctly harsh sentencing judges are now generally going to be able to earn a greater portion of time off their long sentences (and have more opportunities to seek earlier release through other means) thanks to various new provisions of the the FIRST STEP Act.

January 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Monday, January 07, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, January 02, 2019

US Sentencing Commission releases big new report on "Mandatory Minimum Penalties for Federal Sex Offenses"

The US Sentencing Commission has kicked of the new year with this 81-page report titled ""Mandatory Minimum Penalties for Federal Sex Offenses." This USSC webpage provides this summary and key findings from the report:

Summary

This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission's series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%).  In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

January 2, 2019 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

Tuesday, December 18, 2018

After hinting prison term might be in works, federal judge delays Michael Flynn sentencing to allow further cooperation

Given that both the Special Prosecutor and Michael Flynn were advocating for him to receive a sentence without any incarceration, I thought his sentencing today could have ended up being a staid affair.  But, as reported in this BuzzFeed News account, US District Judge Emmet Sullivan had different ideas: 

Michael Flynn, Trump's former national security adviser, decided to delay his sentencing on Tuesday after a judge harshly criticized him for lying to the FBI and acting as an unregistered agent for Turkey, and warned him that he might get a better sentence if he finished his cooperation with the government first.

It was a stunning turn of events two hours after what was supposed to be Flynn's sentencing hearing began. Throughout the proceedings, US District Judge Emmet Sullivan had repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers' comments about the conduct of the FBI agents who interviewed him and the fact that he might not be completely finished cooperating.

Flynn each time said he wished to proceed. But following a particularly harsh string of criticism from the judge about the crimes he'd committed, Flynn asked for a break to speak with his lawyers. When they returned, Flynn's lawyer Robert Kelner said they wanted to postpone sentencing to give Flynn time to complete his cooperation. The judge agreed. The parties are now due to file a report with the court on the status of his case by March 13.

Flynn's change of heat came after Sullivan warned him that he couldn't guarantee Flynn wouldn't get prison time, given the seriousness of his crimes. Sullivan noted that Flynn had lied to the FBI while serving as a senior official in the White House, and had acted as an unregistered agent for the Turkish government. (The judge initially implied that Flynn did work for Turkey while he was in the White House, but later said he misspoke; the prosecutor said Flynn's work for Turkey ended in November 2017.)

"Arguably, that undermines everything this flag over here stands for," Sullivan said, gesturing to an American flag displayed behind his chair. "Arguably you sold your country out." Sullivan continued: "I'm not hiding my disgust, my disdain for this criminal offense."

Flynn at that point took up the judge's offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

Van Grack replied that given the evidence prosecutors had, treason was not something that the government was considering charging Flynn with at the time. Sullivan pressed him, asking if they could have charged Flynn with that crime. Van Grack demurred, saying he was hesitant to answer that question because the offense was so serious.

After the recess, Sullivan said that he hadn't meant to imply that Flynn might have committed treason, he said he was just probing the extent of Flynn's offenses and "was just curious." Van Grack said the government had no reason to believe Flynn committed treason.

Flynn pleaded guilty on Dec. 1, 2017, to one count of making false statements. He admitted lying to FBI agents about his communications in December 2016 with Kislyak while he was serving on Trump's presidential transition team. (He was later accused of lying to Vice President Mike Pence about those contacts as well and resigned). Flynn agreed to cooperate with the government as part of his plea deal; over the past year, according to court filings, he's met with special counsel prosecutors and other Justice Department offices 19 times, for a total of nearly 63 hours.

Flynn was set to become the fifth person sentenced in connection with Mueller's investigation.

Earlier this week, President Donald Trump (in)famously called his former lawyer a "RAT" on Twitter based on his cooperation with federal prosecutors. I wonder if Michael Flynn might soon be getting the same moniker from the President of the United States.

Prior related posts:

December 18, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Convicted poacher sentenced to watch Bambi (really) ... and imagining other crime and Disney movie pairings

Bambi-860x726A couple of helpful colleagues have already made sure I did not miss this local story of a Missouri sentencing.  The press account is headlined "'Bambi' as punishment?  Sentence in SW Missouri poaching case includes mandated viewings," and here are the details:

Four members of a southwest Missouri family have been caught in a multi-year poaching case where authorities say hundreds of deer were killed illegally. “The deer were trophy bucks taken illegally, mostly at night, for their heads, leaving the bodies of the deer to waste," said Lawrence County Prosecuting Attorney Don Trotter.

Conservation agents are calling it one of Missouri's largest cases of deer poaching. The case was so egregious that Lawrence County Judge Robert George ordered a special addition to the jail time one of the poachers received.

Court records show the defendant "is to view the Walt Disney movie Bambi, with the first viewing being on or before December 23, 2018, and at least one such viewing each month thereafter, during Defendants incarceration in the Lawrence County Jail."

The southwest Missouri case involves David Berry Sr. of Springfield, David Berry Jr. of Brookline, and Kyle Berry of Everton. The trio were involved in a multi-year investigation by state, federal and Canadian law enforcement agencies and conservation officers involving suspects in Kansas, Missouri, Nebraska and Canada. David Berry Jr. is the defendant who was ordered to watch Bambi....

On Thursday, Dec. 13, David Berry Jr. received a 120-day sentence in Barton County Circuit Court for a felony firearms probation violation. On Dec. 6, he received a one-year jail sentence in Lawrence County Associate Court after pleading guilty to taking wildlife illegally on Oct. 11. The 120-day sentence Berry Jr. received in Barton County Circuit Court will be served in addition to the one-year sentence he received in Lawrence County.

These convictions were made with information obtained from Operation Game Thief, a hotline sponsored by the Missouri Department of Conservation and the Conservation Federation of Missouri. “It is unknown how many deer the main group of suspects has taken illegally over the past several years,” Lawrence County Conservation Agent Andy Barnes said. “It would be safe to say that several hundred deer were taken illegally.”

Prior to the July 2016 interviews, David Berry Sr. and Eric Berry, 20, Everton, were convicted of taking gamefish by hand in Dade County. During the 2017 firearms deer season, while awaiting his court appearance for violations from the 2016 investigation, Eric Berry and an accomplice were caught spotlighting in Lawrence County. To date, this group of poachers has paid $151,000 in bonds and $51,000 in fines and court costs and collectively served 33 days in jail.

David Berry Sr. and David Berry Jr. had their hunting, fishing and trapping privileges revoked for life by the Missouri Conservation Commission. Eric Berry and Kyle Berry had hunting and fishing privileges revoked for 18 years and 8 years, respectively. Jerimiah Cline, of Republic, who took wildlife illegally and assisted the Berrys, had hunting privileges revoked for five years....

Why take just the deer heads and leave the rest to rot? "In situations like this, with serial poachers who have no regard for the animals, rules of fair chase, or aren’t bothered by the fact that they’re stealing from others, it’s all about greed and ego," said Randy Doman, MDC Protection Division Chief. "Taking just the heads is their version of obtaining a 'trophy' and leaving the carcass behind is merely an afterthought. While there are some cases where poachers go after the antlers for profit, with this bunch it was more about the thrill of the kill itself."

The report that some of these defendants had previously gotten in trouble for "taking gamefish by hand" has me thinking (only half-jokingly) that they should have been ordered to watch Disney's Little Mermaid. And, of course, Disney's Lion King should be a must-watch for that infamous guy who went hunting illegally for Cecil the Lion.  

Especially when we all could use an extra bit of levity in our lives, I have in the title of this post sought to encourage everyone to come up with clever crime and Disney movie pairings.   Would it be so wrong to suggest that Michael Cohen should have been ordered to watch Disney's Robin Hood?  Or that anyone convicted of conducting illegal experiments has to watch Disney's Lilo & Stitch?  (I know that last one is really a stretch, but I wanted to suggest I will no judge silly efforts to spotlight a lesser-known Disney movie in this parlor game).

So, dear readers, what crime and Disney movie sentencing would you find fitting and amusing?

December 18, 2018 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, December 17, 2018

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

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)