Sentencing Law and Policy

"In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety"

The title of this post is the title of this recently published book authored by Lenore Anderson.  I am pleased that I will have an opportunity to speak with the author and one of her colleagues during this event this coming Wednesday at 12noon.  Here is the event description:

Lenore Anderson has built her career on reforming criminal justice, both in her previous position as chief of policy in the San Francisco District Attorney's Office and in her current role as co-founder and president of Alliance for Safety and Justice (ASJ).  In her debut book, "In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety," Anderson examines how the United States’ focus on victims’ rights often perpetuates mass incarceration.  She argues that bureaucrats justify increased incarceration under the guise of public safety, rather than creating solutions to better serve crime victims.

Join the Drug Enforcement and Policy Center (DEPC) for a discussion with Lenore Anderson and Shakyra Diaz, the Chief of Federal Advocacy at ASJ, and moderated by DEPC Executive Director Douglas Berman.  Panelists will discuss how state leaders and advocates can create effective public safety solutions that replace over-incarceration.

The registration link for this online event can be found here.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward

"Defining 'Victim' Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments"

The title of this post is the title of this new article authored by Paul Cassell and Michael Ray Morris, Jr. now available via SSRN. Here is its abstract:

Who qualifies as a “victim” is the critical foundational question for the Crime Victims’ Rights Act (CVRA) and other crime victims’ rights laws.  This article provides the first comprehensive exploration of this “victim” definition question.  It traces out how the CVRA (and many states) define the term “victim” as broadly covering anyone who has been harmed as the result of a crime.  This article begins by reviewing how issues surrounding the definition of “victim” have evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” with precision.  The definition of “victim” has gradually evolved from a person who was the target of a crime to a much broader understanding of a person who has suffered harm as the result of a crime.

The CVRA provides a good illustration of the expansive contemporary definition of “crime victim” — a definition whose implications frequently are not fully appreciated by courts, prosecutors, and other actors in the federal criminal justice system.  The Act defines victim as a person “directly and proximately harmed” by a crime.  This definition extends crime victims’ protections to many persons who may not have been the target of a crime.  This article also analyzes important categories of crimes — violent, property, firearms, environmental, and government process crimes — where “victim” definition issues often occur.  It also takes a close look at a significant recent case involving the CVRA’s crime victim definition: the Boeing 737 MAX crashes case.  The article concludes by arguing that legislators should adopt, and courts should enforce, a far-reaching conception of a “crime victim” as anyone who suffers harm from a crime.  This conception is needed to ensure that important victims’ rights are extended to all who need their protection. 

"Against Prosecutors" and a lot of notable responses thereto

I recall reading a few years ago, but maybe not blogging about, I. Bennett Capers provocative 2020 essay titled simply "Against Prosecutors."  Here is part of the essay's introduction:

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)?  More radically, what would it mean to turn away from state-controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield.  But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.”  Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people.  It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

This essay is fresh in mind in part because I just saw an on-line symposium in which seven scholars have written their own essays in response (and with the author providing a final word). Here are links to these new works:

Angela J. Davis, "The Perils of Private Prosecutions"

Benjamin Levin, "Victims’ Rights Revisited"

Carolyn B. Ramsey, "Against Domestic Violence: Public and Private Prosecution of Batterers"

Corey Rayburn Yung, "Private Prosecution of Rape"

Jeffrey Bellin, "A World Without Prosecutors"

Jenia I. Turner, "Victims as a Check on Prosecutors: A Comparative Assessment"

Roger A. Fairfax Jr.. "For Grand Juries"

I. Bennett Capers, "Still Against Prosecutors"

Council on Criminal Justice releases "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members"

In this post last year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today,  CCJ released its latest publication from the Task Force, titled "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members."  This full 20-page report is worth a full read, and here are the document's "Key Takeaways":

While participants shared their experiences with long sentences from different perspectives, the views expressed reflected numerous common themes. These included:

+ Prison sentences-including long sentences-should serve the purpose of rehabilitation, a goal that many participants said was often impeded by a lack of programming in prisons.

+ Long sentences are not synonymous with accountability; rather, accountability comes from taking responsibility for the harm caused and making amends through personal changes.

+ People serving long sentences should have the opportunity to seek reconsideration of that sentence after a period of time through a process that bases release decisions, in part, on the cognitive, behavioral, and/or emotional growth individuals make while incarcerated.

+ Victims and survivors of crime should have a role in any sentencing reconsideration.

Participants made several specific recommendations in line with these themes.  These included:

+ Provide programming and counseling to all individuals serving long sentences

+ Permit crime victims and survivors to request specific programming for the defendant in their case to complete while incarcerated, as part of pre-sentencing investigation reports

+ Provide victims and survivors, upon request, with information regarding expressions of remorse, educational or skills training, and other personal changes made by incarcerated individuals in their cases

+ In cases of sentencing reconsideration, provide victims and survivors general information about supports available to the incarcerated person post-release

+ Provide more opportunities for victim-offender dialogue throughout long prison sentences

+ Enhance transparency and communication during criminal justice processes and create mechanisms for quickly referring victims and survivors to community-based counseling and other therapeutic services

+ Give judges more complete contextual information about the background of the person being sentenced or resentenced, including facts about the impact of the crime(s) on victims and survivors

+ Provide earlier intervention and healing to at-risk children to prevent future crime, sparing individuals, families, and communities from the pain of violence and from the loss of young persons to long prison sentences

New Justice Department memo calls for "Prioritizing Restitution for Victims"

As detailed in this Washington Post piece, headlined "Prosecutors urged to more aggressively seize funds owed to crime victims," there is a notable new memo from the US Deputy Attorney General Lisa Monaco.  Here are details and context from the press piece:

A new Justice Department memo issued Monday seeks to address criticism that the agency has shielded inmates’ money meant to go to the victims of their crimes, urging prosecutors to more aggressively pursue court cases to seize those funds....

The Washington Post has previously reported that a number of high-profile inmates, including former USA Gymnastics doctor Larry Nassar, singer R. Kelly and Boston Marathon bomber Dzhokhar Tsarnaev have kept and spent thousands of dollars with their prison accounts, while paying only small amounts of court-ordered restitution to their victims. In each of those cases, prosecutors went to court to force the Bureau of Prisons to turn over the money — a process that has been criticized as unfair to victims and counterproductive since it requires one arm of the Justice Department to go to court against another arm of the same department.

Deputy Attorney General Lisa Monaco wrote the memo Monday to “encourage prosecutors to file restitution pleadings or to include restitution calculations in sentencing” documents. “Prosecutors should request that sentencing courts order that restitution be due and payable immediately, but if courts order otherwise, prosecutors should propose that payment plans be set at ‘the shortest time in which full payment can reasonably be made,’” the memo says.

Jason Wojdylo, who spent years at the U.S. Marshals trying to get the Bureau of Prisons to change its policy on inmates’ accounts and has since retired from government, called Monaco’s new memo “maddening” because “it does nothing to address the problem.” For years, Wojdylo said, federal prosecutors “have been doing everything they can to collect court-imposed debt inmates owe to victims,” and without any help from the Bureau of Prisons. Wojdylo said that’s apparently because the inmates often use that money to buy things from the prison commissary system, and that system ultimately pays for tens of millions of dollars in prison worker salaries every year.

In response to Wojdylo’s criticism, a Justice Department official said: “Ensuring victims can recover restitution from inmate trust accounts has been a priority for the Deputy Attorney General and the entire Justice Department. This directive to prosecutors is just one piece of an ongoing effort across the Department to accomplish this goal. We look forward to continuing progress in the near term.”

Under the current system, there are no limits on how much money inmates can keep in their prison accounts, and last year The Post reported that roughly 20 inmates kept at least $100,000 apiece in their prison accounts. The agency only requires inmates to pay a minimum of about $9 a month toward whatever restitution they owe, though officials say they encourage inmates to pay more.

The two-page memo from the DAG is dated December 2, 2022 and has the subject line of "Prioritizing Restitution for Victims." Here are the first two paragraphs of the six-paragraph memo:

On October 1, 2022, the Attorney General published revised Guidelines for Victim and Witness Assistance.  Those Guidelines make clear that the Department is responsible not only for ensuring that those who commit crimes are prosecuted vigorously but also for achieving justice for victims.  Because crimes can have a devastating financial effect on victims, the Department is responsible for ensuring that "victims receive full and timely restitution." Guidelines art. V, § H.  That obligation extends throughout the life ofa case, including after judgment is entered.

Under the Crime Victims' Rights Act, a crime victim has the right to "full and timely restitution as provided by law." 18 U.S.C. § 377l(a)(6).  The Department's prosecutors should therefore be proactive in enforcing court-ordered restitution obligations, including where funds are held in accounts maintained by the Federal Bureau ofPrisons (BOP) in trust during an inmate's period of incarceration.  Last year, I instructed BOP to strengthen monitoring and reporting related to these accounts, consistent with applicable law.  Pursuant to that directive, BOP has since enhanced guidance on monitoring inmate accounts; improved coordination with law enforcement partners, including the U.S. Marshals Service (USMS), on investigating and taking appropriate action against suspicious activity; and identified funds that should be encumbered to meet financial obligations.  BOP is also strengthening the Inmate Financial Responsibility Program to apply additional funds towards restitution and has partnered with other Department ofJustice components and federal agencies to ensure that funds are used to help meet those obligations.

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

The question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 

Alabama completes execution despite opposition from victim's family

As reported in this AP piece, an "Alabama inmate convicted of killing his former girlfriend decades ago was executed Thursday night despite pleas from the victim’s family to spare his life." Here is more:

Joe Nathan James Jr. received a lethal injection at a south Alabama prison after the U.S. Supreme Court denied his request for a stay.

James was convicted and sentenced to death in the 1994 shooting death of Faith Hall, 26, in Birmingham. Hall’s daughters have said they would rather James serve life in prison, but Alabama Gov. Kay Ivey said Wednesday that she planned to let the execution proceed.

Prosecutors said James briefly dated Hall and he became obsessed after she rejected him, stalking and harassing her for months before killing her. On Aug. 15, 1994, after Hall had been out shopping with a friend, James forced his way inside the friend’s apartment, pulled a gun from his waistband and shot Hall three times, according to court documents...

The execution began a few minutes after 9 p.m. CDT following a nearly three-hour delay that the state did not immediately explain. James did not open his eyes or any show visible movements before the execution began. He did not move or speak when the warden asked if he had any final words. His breathing slowed until it was not visible and he was pronounced dead at 9:27 p.m.

Hall’s two daughters, who were 3 and 6 when their mother was killed, had said recently that they would rather James serve life in prison. The family members not attend the execution. “Today is a tragic day for our family. We are having to relive the hurt that this caused us many years ago,” the statement issued through state Rep. Juandalynn Givan’s office read. Givan was a friend of Hall’s.

“We hoped the state wouldn’t take a life simply because a life was taken and we have forgiven Mr. Joe Nathan James Jr. for his atrocities toward our family. ... We pray that God allows us to find healing after today and that one day our criminal justice system will listen to the cries of families like ours even if it goes against what the state wishes,” the family’s statement read.

Alabama Gov. Kay Ivey said she would not intervene. In a statement Thursday night, Ivey said she deeply considers the feelings of the victim’s family and loved ones, but “must always fulfill our responsibility to the law, to public safety and to justice.”... She said the execution sends an,” unmistakable message was sent that Alabama stands with victims of domestic violence.”

Prior related post:

• Victim's family opposing death sentence as Alabama prepares for execution next week 

Victim's family opposing death sentence as Alabama prepares for execution next week

I have long hoped (but have never been confident) that the application of the death penalty can bring some measure of catharsis and closure to family members and other victims of a murder.  For example, as recently mentioned in this post, it seems many victims of the Parkland school shooter are quite eager to see the capital sentencing process move forward.  But, as this local article from Alabama reveals, in some cases the death penalty advances against the wishes of a murder victim’s family.  Here are the details:

Toni and Terryln Hall were just three and six years old when their mother, Faith Hall, was shot to death by Joe Nathan James, Jr., in August 1994. James, who’d dated Hall, was eventually convicted of her murder and sentenced to death.

Now, nearly three decades later, the State of Alabama has scheduled the execution of Joe Nathan James, Jr. for July 28.  But Toni and Terryln Hall, as well as Faith’s brother Helvetius, said they’re opposed to James being put to death. The planned execution has unnecessarily reopened old wounds, the family said, and won’t bring them closure.  James’ death is yet another trauma for all involved, and Gov. Kay Ivey should halt the execution, they said.  Forgiveness should prevail, the family argued, not vengeance....

Each member of the Hall family said their feelings towards James have evolved over time.  Helvetius said that if he’d seen Joe Nathan James the night he murdered Faith Hall, he may have killed him.  “But God was in me,” he said. “And I thank him for it.”

Toni and Terryln both said that for a while, they hated Joe Nathan James.  Toni said that what happened to her mother has impacted her life in ways seen and unseen. James’ actions have had “trickle-down effects,” she said, effects that she’s still trying to cope with today.  She’s more guarded when it comes to intimate relationships.  She’s careful about whom she lets around her children, ages two and four. “It made me hate him,” Toni said.

“For years, I hated him, too,” Terryln added. “But as I got older and started living my life and raising my own kids, I had to find it in my heart to forgive this man.”  And she did forgive him. So did Toni and Helvetius. “I forgive him,” Terryln said. “But I’ll never forget what he did to us.” Toni echoed her sister. “I couldn’t walk around with hate in my heart,” she said.

In the days leading up to Joe Nathan James’ scheduled execution, the Hall family said they feel as though an old wound has been ripped open.  “It’s really bothering me,” Toni said. “To know that someone is going to lose their life.”

The Halls said they are opposed to Alabama executing Joe Nathan James for the murder of Faith Hall.  Toni said she’s even expressed to prosecutors in the case that the family does not want the death penalty carried out against James. “We shouldn’t be playing God,” Toni said. “An eye for an eye has never been a good outlook for life.”

“At the end of the day,” Terryln said, “I feel like no human has to power to kill anyone whether they’re right or wrong.” She said it took her time to come to that conclusion, but she believes it’s the right one.  “I had to look within myself,” she said. “Who am I to judge?”

The Halls said they believe that Faith would not have wanted James executed. “She would’ve forgiven him,” Helvetius said.

The Halls said they plan to travel to Holman Correctional Facility on the evening of the scheduled execution to witness James’ last words.  They said they hope James apologizes for his actions, but that they’ll exit the witness room before the execution takes place either way. “It ain’t going to make no closure for us,” Helvetius said of the execution.

The family said they want Joe Nathan James to know that they do not hate him. If she had the opportunity to speak with James, Toni Hall said she’d make that point clear: “I don’t want you to feel like children grew up hating you,” she said. “And I wish this wasn’t happening to you now.”...

The Halls said that they believe Alabama Gov. Kay Ivey should step in and commute James’ death sentence to life in prison.  They believe their views should hold weight in deciding whether to execute James, although they admit they feel powerless in the situation. “I don’t want it to go forward,” Terryln said. “We’re not God. The Governor is not God.”

James’ blood will not be on their hands, the family said, but on the hands of the state, the governor, and lawmakers who enacted the death penalty. Still, James’ execution will be another trauma for a family that’s already lost so much, they said. “I’ll see him at nighttime when I sleep,” Helvetius said of James. “I don’t need that.”

New issue of Brooklyn Law Review examines "The Role of the 'Victim' in the Criminal Legal System"

I just recently came across online the latest issue of the Brooklyn Law Review, and it is now high on my summer reading list. The abstract of the Foreword to the issue, penned by Kate Mogulescu, provides this context:

On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system.  Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process?  Where does the issue of victimization emerge, how is it received and what should the system’s response be?  Who gets a voice?  And when?  Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy?  The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion and interrogate the way the legal system recognizes, or fails to recognize, those who have experienced harm.

And here is a list of all the articles in this issue:

Giving Meaning to the Apostrophe in Victim[’]s Rights by Margaret Garvin

Should Victims’ Views Influence Prosecutors’ Decisions? by Bruce A. Green and Brandon P. Ruben

Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence by Tamara Rice Lave

Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination by Katharine L. Manning

Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses by Anna Roberts

What Are Victim Impact Statements For? by Susan A. Bandes

Parole, Victim Impact Evidence, and Race by Alexis Karteron

Rotten Social Background and Mass Incarceration: Who Is a Victim? by Steven Zeidman

The Victim/Offender Overlap and Criminal System Reform by Cynthia Godsoe

"Sounds of Silence: A Thematic Analysis of Victim Impact Statements"

The title of this post is the title of this new paper now available via SSRN and authored by Tali Gal and Ruthy Lowenstein Lowenstein lazar.  Here is its abstract:

Victim Impact Statement (VIS) is a legal document which crime victims submit to court as part of the sentencing stage, informing the court about the harms they have suffered.  VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing.  At the same time, their use raises concern about defendants’ due process rights. 

The Article argues that VIS make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims.  Using a thematic analysis of 25 VISs which were submitted to Israeli criminal courts by victims of sexual, physical and property offenses as well as by relatives of homicide victims, the Article identifies four types of functions that VISs play for the victims who submit them.  VISs were used to portray the offense as a life-changing event; to describe the hardships of the criminal justice process; to transform the victim into 'more than just a name’; and to deliver a message or request.  By bringing this content to the courtroom, the statements expanded the legal discourse and created an integrated therapeutic-legal discourse, which was accepted and formally acknowledged by the justice system.  The openness of the legal system to accept and acknowledge exogenous content that is not required by law, even if indirectly, suggests a need to rethink the social function of the court for victims and communities.  It is possible that the courts may be more inclusive of and more attentive to non-legal narratives, emotional expression, and interpersonal connectedness than it is generally believed.

Spotlighting the role of victims in advocating and advancing criminal justice refroms

This new Yahoo News article, headlined "Red states are enacting criminal justice reform at the urging of crime victims," is worth a full read. Here are excerpts from the lengthy piece:

In an effort to create the system of support he and others never had, [shooting victim Aswad] Thomas pivoted to a career where he could help other crime victims heal by joining Alliance for Safety and Justice (ASJ), a multistate public policy organization that promotes legislation on behalf of crime victims. The organization advocates for trauma centers in communities, less complicated probation laws and rehabilitation such as life skills programs and employment opportunities for the formerly incarcerated.

Since its founding in 2016, ASJ has won more than 50 campaigns tied directly to support for crime victims, including key wins in Republican-majority states that have been historically resistant to criminal justice reform....

These successes are a big reason why the CEO of ASJ, Jay Jordan, who spent eight years in prison for a robbery he committed in his teens, grimaces at the mention of criminal justice reform, instead calling it public safety — an important distinction that he says has garnered bipartisan support through the years.

“People often say, ‘Let's get tough on crime,’” Jordan told Yahoo News. “We say, ‘Let's get tough on safety.’ … We don’t see [states] as Republican or Democratic states. We see them as states where people live where people want to be safe.”...

In Ohio, India Brown, whose partner was murdered, was initially blocked from accessing victims’ compensation funds because of a previous teenage felony. Brown persuaded Gov. Mike DeWine and Attorney General Dave Yost, two Republicans, to fund trauma recovery centers and remove barriers to victims’ compensation. This would ensure that families have emotional support and financial stability. “I wrestled with unspeakable grief,” Brown wrote in an op-ed for the Columbus Dispatch.

And in Texas last summer, veteran Melvin Halsey, along with other crime victims, helped advocate for reform of the state’s probation system. Tens of thousands of Texans will no longer be sent back to prison for technical violations as a result. “Black people make up 13% of the population in Texas, but we’re 33% of the state’s incarcerated population,” Halsey wrote in an op-ed for the Austin American-Statesman last year. “A system that focuses on helping people rehabilitate ourselves rather than doling out harsh punishments is not only the right thing to do, it makes communities safer and saves Texas money too.”

Interesting example of federal judge rejecting white-collar plea deal as too lenient

A story this week out of Utah provides a reminder that federal judges can still have control over sentencing outcomes even in our plea bbargained justice system of pleas.  The headline of this local article captures the essence of the story: "Judge demands harsh sentence for ex-attorney accused of embezzling millions from Utah clients: Former Salt Lake City attorney Calvin Curtis faced about six years in prison as part of a plea agreement. The judge insisted on more prison time."  Here are some of the details:

A federal judge in Utah tossed out a sentencing proposal Tuesday for former Salt Lake City estate attorney Calvin Curtis, demanding that the man accused of defrauding his clients out of millions receive a harsher prison sentence.

The proposal of about six years in prison had been agreed upon by federal prosecutors and Curtis’ defense attorney ahead of the hearing. U.S. District Judge David Barlow was expected to take it into consideration before imposing a sentence.

Instead, rejecting the proposal altogether, Barlow said that as Curtis allegedly stole $12.7 million from 26 of his clients — all elderly, disabled or incapacitated — over about 13 years, the suspected fraud was “cold-blooded, premeditated and repeated.” Curtis “perverted” the law, Barlow continued, and “enriched himself on the backs of those who needed his help.”

Prosecutors have argued Curtis used that money to fund a “lavish lifestyle,” which included frequent travel, expensive gifts, tickets to basketball and football games, and pricey renovations and mortgage payments on his former mansion home and office on South Temple.  Assistant U.S. attorney Ruth Hackford-Peer said in Tuesday’s hearing that the proposed sentence of 73 months in prison was not a perfect resolution, “but it’s a good one.”

Several of Curtis’ victims attended the hearing, filling the courtroom along with family members and caregivers.... As the victims shared their stories of how devastating it has been to lose money that they would have used for various needs such as food, clothing, medicine and health care, a common refrain was for Barlow to impose the maximum sentence. “I don’t think Calvin is human,” one woman said quietly. “I feel that he’s the devil.”...

When it came time for Barlow to announce a decision, he said the proposed prison sentence — plus a restitution judgment of $12.7 million and supervised release for three years as part of Curtis’ plea agreement — was not harsh enough.  Since Curtis’ crimes were “so heinous,” Barlow said, he should receive a prison sentence at the higher end of the range that is customary in such a case, which is 10 years. The judge added that he is “not convinced” that Curtis — who is charged with wire fraud and money laundering — takes responsibility for his actions or feels remorse.

Barlow asked the attorneys for both sides to negotiate again and come up with a new sentencing proposal. A new hearing date was not immediately set....

Laura Milliken Gray, an attorney for a woman with Alzheimer’s disease from whom Curtis has admitted to embezzling more than $9 million, called Barlow’s decision a “surprise.”  Her client’s daughter-in-law, Sherry McConkey, said she is “excited” at the prospect of Curtis getting more time in prison than expected. But she added that it’s “hard” the case will go on longer, “because I just want it to be over and done with.”

"Invisible Victims"

the title of this post is the title of this intriguing recent paper authored by Mihailis Diamantis that I just found on SSRN.  Here is its abstract:

The halls of justice are forever closed to many who suffer grievous wrong.  They need not have done anything to forfeit their claim.  No matter how certain the evidence is or how eager prosecutors may be, no criminal court will admit them.  These victims are, for all intents and purposes, invisible to the criminal law.

Invisible victims exist because of doctrines that shield certain categories of people from any criminal justice inquiry.  These people include those whose alleged misdeeds occurred long ago, diplomats, legislators, pardon recipients, and the deceased, among many others.  Immunizing such individuals from criminal sanction often makes sound policy sense.  But criminal law has yet to reckon with the moral cost of deferring unconditionally to their interests.

This Article offers a more balanced approach.  Criminal law should permit courts to try suspects who are immune from punishment.  Trial could memorialize invisible victims’ narratives in the solemn forum of the courtroom.  Where the evidence warrants, juries could validate invisible victims by condemning the wrongs they suffered.  Familiar procedural safeguards could protect unpunishable suspects’ weightiest interests even as invisible victims finally receive the recognition they deserve.

"Ruined"

The title of this post is the title of this intriguing new article authored by Maybell Romero now available via SSRN. Here is its abstract:

Judges play a critical role in one of the most important states of a criminal case’s adjudication — sentencing.  While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants.  This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.”  The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment.  However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing.  I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

Federal judge rejects binding sentencing federal plea deal for men who killed Ahmaud Arbery

As reported in this new AP piece, a "federal judge rejected a plea agreement Monday that would have averted a hate crimes trial for the man convicted of murdering Ahmaud Arbery." Here are the sentencing details that apparently drove the decision:

A federal judge rejected a plea agreement Monday that would have averted a hate crimes trial for the man convicted of murdering Ahmaud Arbery.

Arbery’s parents denounced the proposed deal for Travis McMichael, with mother Wanda Cooper-Jones and father Marcus Arbery emotionally asking the judge to reject agreements filed for McMichael and his father, Greg McMichael.

In rejecting the deal, U.S. District Judge Lisa Godbey Wood said it would have locked her into specific terms — including 30 years in federal prison — at sentencing. Wood said that in this case it would only be appropriate to consider the family’s wishes at sentencing, which the proposed deal wouldn’t allow. The judge gave the McMichaels until Friday to decide whether they move ahead with pleading guilty.

Marcus Arbery told reporters outside the federal courthouse in Brunswick that he was “mad as hell” over the proposal, which lawyer Lee Merritt said could enable Travis and Greg McMichael to spend the first 30 years of their life sentences in federal prison, rather than state prison where conditions are tougher. “Ahmaud is a kid you cannot replace,” Arbery said. “He was killed racially and we want 100% justice, not no half justice.”

Cooper-Jones described the U.S. Justice Department’s decision to propose the plea deal despite her objections as “disrespectful.” “I fought so hard to get these guys in the state prison,” she said. “I told them very, very adamantly that I wanted them to go to state prison and do their time. ... Then I got up this morning and found out they had accepted this ridiculous plea.”...

The proposed plea agreements for the McMichaels were filed with the court late Sunday. There was no mention of a deal with their co-defendant, William “Roddie” Bryan. All three men were sentenced to life in prison on Jan. 7 after a trial last fall.

The hate crime charges accuse McMichaels and Bryan of violating the 25-year-old Black man’s civil rights by chasing him through their neighborhood in coastal Georgia on Feb. 23, 2020. The McMichaels armed themselves and pursued Arbery in one pickup truck while Bryan joined the chase in another and recorded video of Travis McMichael blasting Arbery with a shotgun.

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

"Victims’ Rights in the Diversion Landscape"

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

In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect.  I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion.  Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes.  Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.

Notable new US Sentencing Commission primers on federal crime victim rights

The US Sentencing Commission has just released a couple of new primers on crime victims' right in the federal criminal justice system. Here are links to USSC pages about the short reports and descriptions:

Crime Victims' Rights

(April 2021) This primer provides a general overview of crime victims’ rights under the Crime Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act (“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related restitution provisions through USSG §§5E1.1 and 8B1.1.  Although the CVRA applies broadly to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily on its application to sentencing and post-sentencing issues, including revocations of probation, supervised release, habeas proceedings, and parole proceedings.  This primer is not intended as a comprehensive compilation of case law or as a substitute for independent research and primary authority.

Economic Crime Victims

(April 2021) This primer provides a general overview of selected guideline issues related to victims in offenses sentenced under §2B1.1 (“Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud or Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States”).  Although the primer identifies some of the relevant cases and concepts, it is not intended as a comprehensive compilation of the cases or analysis related to these issues.

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

One year (and 185 pages) later, divided Eleventh Circuit (now en banc) again rules Jeffrey Epstein's victims had no pre-charge rights under federal CVRA

Almost exactly one year ago, as blogged here, a divided Eleventh Circuit panel handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant.  The opinions in the original panel decisions In re Courtney Wild, No. 19-13843 (11th Cir. April 14, 2020) (available here), ran a total of 120 pages.  Yesterday, exactly a year and a dat later, the Eleventh Circuit handed down this new en banc ruling in this case ruling 185 pages.  Judge Newsom, who authored the original panel's majority opinion for the court also authored the lead en banc opinion, which starts this way:

This petition for writ of mandamus arises under the Crime Victims’ Rights Act, 18 U.S.C. § 3771.  Petitioner Courtney Wild is one of more than 30 women who, according to allegations that we have no reason to doubt and therefore accept as true in deciding this case, were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her mandamus petition, Ms. Wild asserts that when federal prosecutors secretly negotiated and executed a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with and to be treated fairly by the government’s lawyers.

We have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government attorneys.  Even so, we find ourselves constrained to deny Ms. Wild’s petition.  While the CVRA permits a crime victim like Ms. Wild to “mov[e]” for relief within the context of a preexisting proceeding — and, more generally, to pursue administrative remedies — it does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.  Because the government never filed charges against Epstein, there was no preexisting proceeding in which Ms. Wild could have moved for relief under the CVRA, and the Act does not sanction her stand-alone suit.

Judge Tjoflat has a notable concurrence (joined by a number of judges) that starts this way:

I concur wholeheartedly in the majority’s opinion.  I write separately to elaborate on the untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers. My concurrence proceeds in three parts.  First, I will outline the litigation models Judge Branch’s dissent and the majority propose: one conferring judicially enforceable rights to crime victims pre-charge, and one conferring such rights to crime victims post-charge.  Then, I will identify two fairness concerns the dissent’s pre-charge model would raise.  Finally, to bring us home, I will expand on the majority’s discussion of the separation of powers doctrine and elaborate on why a pre-charge CVRA model would impermissibly drag federal courts into the business of prosecution.  By laying these problems out in simple terms, my hope is that readers of today’s decision will understand precisely why we are compelled to deny Ms. Wild’s petition.

Judge Branch's dissent, which runs more than 50 pages, includes this road map of its coverage in its introduction:

My dissent proceeds in five parts.  First, I review the facts surrounding the plea deal with Epstein.  Second, I review the procedural history.  Third, I turn to how Congress granted expressly to crime victims in § 3771(a)(5) and (a)(8) a “reasonable” right to confer and a right to be treated fairly and those rights attach pre-charge.  Fourth, I review (A) how the Majority has misapplied and misinterpreted the Supreme Court’s Sandoval decision; (B) how the CVRA text in § 3771(d) expressly provides victims who believe their CVRA rights were violated pre-charge with a statutory remedy — a private right to seek judicial enforcement of their statutory rights in § 3771(a) — when no prosecution is underway; (C) how the statutory interpretation errors in the Majority’s reading of § 3771(d) and (f) leads it to the opposite conclusion; and (D) how even under the Majority’s analysis, the existence of the administrative remedy in § 3771(f) does not make the express judicial remedy in § 3771(d) unavailable to the victims, much less show that Congress did not intend a judicial remedy for crime victims in the “pre-charge” period.  Fifth, I discuss why the CVRA plainly precludes any interference with prosecutorial discretion.

I presume Ms. Wild will now seek Supreme Court review.  I do not believe the Supreme Court has ever taken up a case involving the interpretation of the CVRA, which was enacted by Congress almost two decades ago now.  For a host of reasons, I am disinclined to predict whether this high-profile case might garner the Justices' attention.

Prior related post:

• Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

UPDATE: I just saw Paul Cassell, who helps represent Ms. Wild, has this post about this ruling at The Volokh Conspiracy under this full headline: "The Eleventh Circuit Rules Against Jeffrey Epstein's Sex Abuse Victims' Efforts to Rescind His Secret Plea Deal.  The en banc ruling calls the sordid deal a 'national disgrace' but concludes the courts are powerless to enforce crime victims' rights in pre-charging situations -- a disturbing ruling that I hope will be quickly overturned."  Here is a key paragraph from this post about what may come next:

The Circuit's decision is wrong at so many levels that it is hard to see the precedent lasting long.  We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications.  And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims' Rights Reform Act of 2019, which would directly overrule the Circuit's conclusion.

In high-profile sentencing, victim input and collateral consequences push judge away from prison term for misconduct by former FBI attorney

This lengthy Politico piece, headlined "Ex-FBI lawyer spared prison for altering Trump-Russia probe email," reports on an interesting high-profile federal sentencing today in DC.  Here are excerpts, with a bit of commentary to follow:

The only person charged in the Justice Department's investigation into the origins of the probe of former President Donald Trump's 2016 campaign and its ties to Russia was spared prison time for altering an email used to support a surveillance application.  Former FBI attorney Kevin Clinesmith, 38, received the sentence of 12 months probation and 400 hours community service from U.S. District Court Judge James Boasberg Friday during a video hearing.

Clinesmith admitted that in June 2017 he sent an altered email to an FBI agent that indicated a target of court-ordered FBI surveillance, former Trump campaign adviser Carter Page, was "not a source" for the Central Intelligence Agency. The statement, passed along as the FBI was applying for a third extension of surveillance of Page, made Page's actions seem more suspicious by downplaying his past cooperation with the CIA.

Clinesmith insisted that he thought the statement was true at the time and only altered the message to save himself the hassle of procuring another email from the CIA. Prosecutors contested that claim, arguing that the FBI lawyer intended to mislead his colleague, but Boasberg sided with the defense on that point.  "My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true," Boasberg said. "By altering the email, he was saving himself some work and taking an inappropriate shortcut."

While Trump and his GOP allies have suggested that Clinesmith was engaged in a political vendetta against Trump, Boasberg noted that a Justice Department inspector general investigation failed to establish that political considerations played a role in Clinesmith's actions or numerous other errors and omissions that impacted filings with the Foreign Intelligence Surveillance Court....

Clinesmith pleaded guilty last August to a felony false statement charge in a plea deal with John Durham, the prosecutor then-Attorney General William Barr tapped in 2019 to investigate the origins of the Trump-Russia probe. Barr formally designated Durham as a special counsel last fall, in an apparent bid to complicate any attempt by a new administration to shut down Durham's inquiry.

Prosecutors argued that Clinesmith's misconduct was so serious that he deserved between about three and six months in prison. Clinesmith's lawyers asked that he not receive any prison time.  The maximum sentence on the false statement charge is five years in prison, although judges usually sentence in accord with federal guidelines that called for Clinesmith to serve between zero and six months in prison. "The defendant's criminal conduct tarnished and undermined the integrity of the [Foreign Intelligence Surveillance Act] program," Assistant U.S. Attorney Anthony Scarpelli told the court.  "It has lasting effects on DOJ, the FBI, the FISC, the FISA process and trust and confidence United States citizens have in their government...The resulting harm is immeasurable."

Clinesmith's lawyer Justin Shur called his client's actions "inexcusable," but said they were "aberrations" in a life of dedicated public service.  He also said they played a relatively small part in the overall surveillance process and the broader probe. "There were many people involved in these applications and many mistakes that were made," Shur said....

Clinesmith also addressed the court, expressing contrition and describing his career as essentially destroyed by his misconduct and the ensuing prosecution. "I am fully aware of the significance of my actions and the crucial error in judgment I made," the lawyer said. "I let the FBI, the Department of Justice, my colleagues, the public and my family down. I also let myself down.  I will live with the consequences and deeply-held feeling of regret, shame and loss caused by it for the rest of my life."

While prosecutors urged the judge to send Clinesmith to prison to send a message to others in government not to try something similar, Boasberg said he believed that message had already been sent. He noted that Clinesmith has lost his job, may be disbarred and may never be able to work in the national-security field again. "He went from being an obscure government lawyer to standing in the eye of a media hurricane," the judge said. "He's not someone who ever sought the limelight or invited controversy other than by his criminal action here....Anybody who's watched what Mr. Clinesmith has suffered is not someone who would readily act in that fashion."

The 90-minute sentencing hearing also featured an impassioned speech from Page, in which the energy industry analyst complained that his life was also turned upside down by the media firestorm that followed public disclosure that he was a focus of the FBI probe into potential Russian influence on the Trump campaign. "My own personal life has been severely impacted," Page said. "I was frequently harassed on the street and even under the street such as in the Washington metro beneath the courthouse....It was deadly serious. At the time I received many death threats as a 'traitor.'"

However, Page did not ask for imprisonment for Clinesmith. "I hope the defendant can get back to his family as soon as you deem appropriate," the former Trump campaign adviser told the judge. That seem to strike a chord with Boasberg, who mentioned twice during the hearing that Page wasn't seeking prison for the ex-FBI lawyer.

The politics surrounding this case account for why this matter will be covered in many newspapers, but I am drawn to this tale as a notable sentencing story.  Tellingly, while federal prosecutors argued that some prison time was needed, the person victimized by the offense (Carter Page) had the magnanimous and impactful view that the defendant need not serve any prison time.  In addition, the federal district judge here recognized, as should every sentencing judge in every case, that the defendant was already subject to a wide array of significant and persistent collateral consequences which function to punish and deter in ways that transcend a short period in prison.

"Transparency in Plea Bargaining"

The title of this post is the title of this forthcoming article authored by Jenia Iontcheva Turner available via SSRN. Here is its abstract:

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism.  Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record.  Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations.  For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny.  Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently.  It can help protect cooperating defendants from retaliation.  And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns.  It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients.  It can also potentially impair victims’ rights and interests.  Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.

"Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps"

The title of this post is the title of this notable new report from the Alliance for Safety and Justice.  Here is how the report's Executive Summary gets started:

Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps is a first-of-its-kind national study of Americans’ unmet safety needs and public safety policy preferences.  In a moment of unprecedented change — and growing consensus on the need for new approaches to public safety — this report aims to fill critical gaps in information, to help point decision-makers toward a new set of safety solutions that can better serve vulnerable Americans, improve public safety and stop the cycle of crime.

Despite dramatic increases in safety and justice spending over the last several decades, few of those expenditures are informed by the needs of Americans lacking safety or consistently aligned with Americans’ policy preferences.  As concerns about spending and criminal justice grow, there’s never been a more important time to ask some fundamental questions about safety.  What are the gaps in safety that people impacted by crime, violence and criminal justice experience?  What are the priority safety investments that matter the most to Americans of all walks of life?

In June of 2020, over 4,000 Americans were surveyed about their experiences with safety and attitudes about safety policy.  In particular, the survey engaged with people vulnerable to the cycle of crime, including crime victims, people experiencing mental health or substance abuse challenges, and those living with past convictions, as well as voters of all backgrounds, regardless of experience.

As the report details, there is remarkable alignment between gaps in safety that vulnerable people face and the public safety policy preferences that most all Americans support  — policy preferences that would address those very gaps.  Broad consensus exists at the neighborhood level and across different demographics: public safety policies and investments should prioritize violence prevention, recovery, mental health, reentry and the most effective strategies to stop the cycle of crime, more than incarceration.  It’s time for federal, state and local expenditures to match these urgently needed and popularly supported priorities.  It’s time for Shared Safety.

Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal

Later this month, I will have the pleased of starting a new semester teaching my sentencing law and policy class.  I often ask my students about on-going real cases, and this year I will press student to consider whether they would want the US Attorney for Massachusetts to pursue capital resentencing in the Boston Marathon bombing case, United States v. Tsarnaev, following the First Circuit’s recent death sentence reversal. Helpfully, the Boston Globe has these two new pieces focused on this topic:

• "What do Boston Marathon bombing survivors want federal prosecutors to do next?"

• “‘We just don’t want to hear from him ever again’: Dzhokhar Tsarnaev’s death sentence was vacated July 31; Hear what Boston Marathon bombing survivors and victims’ family members had to say in the wake of that court decision."

Here are excerpts from the first piece linked above:

The overturning of Tsarnaev’s death sentence has sent tremors of anxiety across the community of survivors and relatives of those killed in the attack, many of whom are still recovering from their physical and emotional wounds.... In a statement, Andrew Lelling, US attorney for Massachusetts, promised to consider the views of survivors and victims’ families before deciding whether to seek a new trial....

“Let him serve his life in prison, and let us live our lives in peace,” said Lynn Julian Crisci, who suffered a brain injury, hearing loss, and neurological disorders as a result of the first bomb. Crisci, 43, used to support the death penalty, until having to live through what feels like an endless appeals process.  Now she hopes prosecutors will not seek another penalty trial....

Of 18 victims who responded to the Globe about what prosecutors should do, a majority said they would prefer to avoid another trial and to let Tsarnaev spend the rest of his days at the US Penitentiary Administrative Maximum Facility in Colorado, the nation’s highest-security prison.

“I would prefer to let it go and let him rot in jail,” said Beth Bourgault, 65, who lives in Lynn. Bourgault and her husband were standing a few feet from Krystle Campbell when the first of two bombs exploded on Boylston Street.  Shrapnel severed muscles and nerves in one of her legs. She also suffered a ruptured eardrum.  Her husband, Michael, suffered burns and ear injuries as well.  She was troubled when Tsarnaev was originally sentenced to death and hopes prosecutors do not pursue a second trial.  “My feeling is he was hoping for death and that he got what he wanted,” she said. “I’d prefer he spend his days thinking about what he did.”

Other victims, though, were enraged by the court’s ruling and were willing to endure another trial to see Tsarnaev sentenced to death.  “If they don’t go through with the death penalty in this case, what kind of precedent is there?  What’s the point of the death penalty?” said Liz Norden, whose two adult sons lost their right legs in the bombing.  “This is personal to me.” Norden, 57, who lives in Melrose, vowed to attend a new trial.  “I want to see it through the end,” she said. “I want justice.”...

On Thursday, the US attorney’s office in Massachusetts, which prosecuted Tsarnaev in 2015, held a conference call with victims to discuss the appeals court decision and how they wished to proceed.  Discerning a consensus might be difficult.

Helen Zhao, who lost her niece Lingzi Lu, a 23-year-old Boston University graduate student from China, to the second bomb, supports the death penalty for Tsarnaev.  “He has harmed a lot of people and changed a lot of people’s lives,” she said.  “He’s a terrorist.” Lu’s parents, who live in China, were “shocked” and “speechless” by the ruling, she said.  “They were disappointed in the American legal system,” said Zhao, 49, who lives in Rhode Island.

Marc Fucarile, who lost his right leg in the bombing, worried that a life sentence could mean that Tsarnaev might one day be able to regain his freedom.  “As long as he’s breathing, that’s a possibility,” he said.  “They’re giving [Tsarnaev] a victory.” Fucarile, 41, who lives in Reading, testified during the penalty phase at Tsarnaev’s trial and said he would attend a new trial.  “I want to see it happen,” he said.

But Jenny Chung Greenfield, who was hit by shrapnel in her chest from one of the bombs, prefers that prosecutors put an end to what could be decades worth of appeals, keeping Tsarnaev’s name in the public eye.  She didn’t attend the first trial and doubts she’d go to a new one.  “I just think about what does closure mean, and closure is such a personal thing to people, and the way that folks find closure is different,” said Chung Greenfield, 42, who lives in Cambridge.

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

• With executions looming, lots of news and notes about the federal death penalty 

Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

A divided Eleventh Circuit panel today handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant. The opinion for the court authored by Judge Newsom in In re Courtney Wild, No. 9:08-cv-80736-KAM (11th Cir. April 14, 2020) (available here), gets started this way:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004.  Petitioner Courtney Wild is one of more than 30 women — girls, really — who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein.  In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government lawyers, we find ourselves constrained to deny her petition.  We hold that at least as matters currently stand — which is to say at least as the CVRA is currently written — rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment.  Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered.  It’s not a result we like, but it’s the result we think the law requires.

Judge Hull issued a near 60-page dissenting opinion (roughly matching the length of the majority opinion). Here is are key passages from its opening:

This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which grants a statutory “bill of rights” to crime victims.  In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA.  Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights — the right to confer with the government’s attorney and the right to be treated fairly — that were repeatedly violated by the U.S. Attorney’s Office in the Southern District of Florida....

I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute.  Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute.  Rather, the Majority’s contorted statutory interpretation materially revises the statute’s plain text and guts victims’ rights under the CVRA.  Nothing, and I mean nothing, in the CVRA’s plain text requires the Majority’s result.

It will now be very interesting to see if this this matter gets further attention from either the full Eleventh Circuit and/or the US Supreme Court.

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

• Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act
• Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief
• "Madoff Wants Leniency. My Dad Received None. Why should the Ponzi scheme king get out to die, when the judges imprisoned my father with just weeks to live?" 

"Victims' Rights from a Restorative Perspective"

The title of this post is the title of this new paper authored by Lara Bazelon and Bruce Green recently posted on SSRN.  Here is its abstract:

The criminal adjudicatory process is meant in part to help crime victims heal.  But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims.  For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution.  But these efforts, while important, have not persuaded crime victims to trust criminal process.  For example, sexual assaults remain grossly under-reported and under-prosecuted.  Less than 1 percent of sexual assault crimes result in a felony conviction.  Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime — or victims of particular crimes such as sexual assault — are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows.  However, sexual assault victims are a diverse group — racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof.  Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives.  Some have no desire to participate in the criminal adjudication process at all.  Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice.  However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing.  It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective.  We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment.  Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter

This opinion piece from Florida, headlined "Parkland parent: Drop death penalty for shooter, let him rot in jail," provides a notable plea to prosecutors from Michael Schulman.  Here are excerpts:

On February 14, 2018, my son, Scott J. Beigel, was murdered by this active shooter at Marjory Stoneman Douglas High School in Parkland....  I read the Nov. 24 Sun-Sentinel editorial, “Delay the Nikolas Cruz trial or accept his plea,” — and could not agree more.

To put the students and faculty through the trauma of reliving that horrible day is cruel and unnecessary. “Going for the death penalty” will not bring our loved ones back to us.  It will not make the physical scars of those wounded go away.  In fact, what it will do is to continue the trauma and not allow the victims to heal and get closure.

Understand, that in order to get the death penalty, the state has to take the trial for the murder of our family members to conclusion.  In all likelihood, that means many of us would have to testify at the trial and relive February 14, 2018, again and again, as we all sit in a courtroom for weeks.

We would be putting ourselves through this for the chance that the shooter would get what we all believe he deserves: the death penalty.  Yet, even following a trial, the shooter could be sentenced to life without parole — the same sentence the shooter has already agreed to accept for in exchange for a guilty plea.  Pursuing the death penalty means subjecting ourselves to the trauma of a trial, reliving the murder of our loved ones for a result we could have obtained without that trauma.

Now let’s imagine the jury finds that the shooter should be put to death. The average time an inmate in Florida spends on death row prior to execution is more than 16 years, according to the Florida Department of Corrections. During those 16 years of time, there will be numerous appeals. Imagine if the shooter wins just one of those appeals and a court judge orders a new trial. We will then have to go back to court and re-open our wounds by testifying again. This is not healthy. This will not help us heal and get any kind of closure....

To State Attorney Michael Satz, and to the living victims of the Marjory Stoneman Douglas massacre, let the shooter rot in jail for the rest of his life. Let us try and get some closure! Let us try and move forward with our lives.

Prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty? 
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz 

A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz

CNN has this notable new article headlined "This is where Parkland shooter Nikolas Cruz's death penalty case stands a year later," and here are excerpts:

A year after Nikolas Cruz massacred 17 people and injured 17 others at his former high school in Florida, the question is not whether he's guilty -- he's confessed on video.  It's does he live or die?  His defense team has offered a guilty plea in exchange for life in prison without the possibility of parole -- but only if prosecutors take the death penalty off the table. Prosecutors have rejected the plea, meaning a lengthy trial is all but inevitable.

If the case goes to trial, Cruz will join a short list of mass shooters who've faced their victims in court.  Of the 10 deadliest shootings in recent US history, Cruz is the only one who was captured alive.

The case is on what's described as the "pretrial discovery" stage, says Broward Public Defender Howard Finkelstein, whose office is representing Cruz.  He says the case is a long way from trial. In this stage, Cruz's attorneys have been deposing dozens of witnesses to give oral statements under oath.

Such sessions happen behind closed doors and are only attended by attorneys, the court reporter and the victims' advocate, says Richard Hornsby, a criminal defense lawyer in Florida who is not involved in the case.  Depositions are conducted in person by prosecutors and defense attorneys, and the defendant is not allowed to be present, he adds.

"It is common for victims/accusers to be deposed. However, from a strategic standpoint, I could not imagine the defense attorneys deposing the survivors in this case without a good reason," Hornsby says.  The Broward County Clerk of Court's website lists deposition notices for mostly law enforcement witnesses.

It's the beginning of a long, arduous process.  A death penalty case can take years to go to trial.... The process involves painstakingly combing through graphic details of the shooting in court. No detail is too small, including the gunshots, autopsies and the killer's words.  "However, with the judge pushing the case hard and the passage of Marsy's Law last fall, I would not be surprised if this case makes it to trial early next fall," Hornsby says.  Marsy's Law expanded the rights of victims of crimes, including giving them the right to have a voice in prosecution issues.

Broward state prosecutors have not revealed much in recent months.  But in the past, they've rejected the defense's offer of a guilty plea in exchange for a life sentence, paving the way for a lengthy trial. While the prosecution did not respond to CNN's request for comments for this article, Michael Satz, Broward County's prosecutor, has previously said this is "certainly the type of case the death penalty was designed for."  Assistant State Attorney Shari Tate has said Florida will not allow Cruz to "choose his own punishment for the murder of 17 people."

Cruz's defense team has made it clear it's not looking forward to a death penalty trial. That's why Finkelstein is offering his client's guilty plea in exchange for 34 life sentences without parole.  That would take the death penalty trial off the table and spare the victims from reliving the nightmare during testimony, he says.

That would end the extensive legal process he says could last decades if there's an appeal. In some cases, death penalty trials are followed by lengthy appeals in which survivors return to court to face the killer all over again.  "A plea to 34 consecutive life sentences ends not only the above immediately but means no appeals," Finkelstein says. "We still stand ready to plead guilty to 34 consecutive life sentences."

Some Marjory Stoneman Douglas students are conflicted on the possibility of a death penalty trial.  Student leader Emma Gonzalez describes Cruz's potential death penalty trial as a "good" thing.  Another student, Cameron Kasky, has said he wants him to "rot forever" in prison instead.

Andrew Pollack, whose daughter, Meadow, was one of the people killed, has said he does not plan to attend any death trial hearings. "I don't want to go through some lengthy trial that's going to be brutal. I want him to sit in a cell and rot for the rest of his life," Pollack says.

In high-profile cases such as the Parkland shooting, there are no shortages of challenges for everyone involved.  Even finding a jury will be an ordeal, Hornsby says.... "You will have to find people who say they could be fair and impartial to the defendant given what they know about the Parkland murders," he says. "Good luck."

Florida's death penalty law requires the jury's decision to be unanimous. If one of the 12 jurors dissents, the defendant must be sentenced to life without parole.

There are so many interesting and sad elements to this story. For starters, the possibility of the death penalty has, in one sense, already done a lot of work in this case, as it is surely driving the defense to offer to plead guilty to 34 consecutive life sentences.  But because prosecutors, likely influenced in part by the wishes of some victims, are eager to secure a death sentence, there will be lots and lots of process (and expense) in the months and years ahead.  I hope that the victims of the shooting and victims' families can find some comfort in the long capital trial process, but even if they do they also have to be prepared for years (likely decades) of an appeals process.  (Recall, as noted in this recent post, that we are approaching the six-year anniversary of the Boston Marathon bombing and the capital case still is not close to being fully briefed in the First Circuit.)  

With a focus on the victims, I find it especially interesting that activist Emma Gonzalez is apparently supportive of the decision to pursue capital charges against Cruz.  My general perception is that many progressives and many young people tend to be strong opponents of the death penalty, and so I would be inclined to guess that most of the Parkland students will be disinclined to support efforts to send Cruz to death row.  But, as is often the case, victims are a diverse and sometimes unpredictable bunch.  And with Marsy's Law newly on the books in Florida, their roles will be one to watch closely in the months and years ahead as well.

Finally, at the risk of seeming crass, I hope someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida.  As regular readers know, I think the extraordinary expense of many capital cases can often serves as one of the strongest arguments against the death penalty as it rarely seems the penalty's (debatable) benefits measure up to its (reasonably clear) economic costs.   

Prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty? 
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 

Are there constitutional (and ethical) issues raised by allowing the family of murder victims to hire lawyers to assist prosecutors as "associate attorneys" in capital prosecution?

The question in the title of this post is prompted by this very interesting local article from Kansas headlined "Despite doubts, judge allows private prosecutors in case of two slain deputies."  Here is the story, with one particular line emphasized:

Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County judge said Wednesday he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.

Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.

Under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.

Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.

They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case. They said it raises “novel constitutional, statutory and ethical issues.”

“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.

In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases. And while it has never been used in a capital case, there is nothing in the law that excludes it.

At a court hearing Wednesday, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”

A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.

At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office. She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.  “The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”

District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed. The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.

The constitutionality of victims have a say and a role in various criminal justice proceedings is well established, and I am generally supportive of victim's being allowed to retain a lawyer to help them preserve and exercise their rights in various ways. But one reason I support victim involvement in criminal prosecution is because, if they have independent rights in the process, they can and should often serve as another kind of check on the power of the state (by, for example, advocating for a sentence lower or just different than what prosecutors seek). But here it seems that the victims' lawyers are not going to be an independent voice and advocate for the victims, but rather will be "operating under the direction" of the District Attorney. That does not seem quite right, and arguably raises some unique constitutional and ethical concerns.

Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17

In this post a few days ago, I provided details and links concerning three amendments that Senator Tom Cotton and Senator John Kennedy will seek to have made to the FIRST STEP Act this coming week.  Unsurprisingly, advocates of significant sentencing reform are not fans of the Senators' proposed changes.  The Brennan Center, for example, has this release explaining that it "strongly rejects attempts by Sens. Tom Cotton (R-Ark.) and John Kennedy (R-La.) to add a series of 'poison pill' amendments that would unacceptably weaken the FIRST STEP Act....  These amendments would stigmatize incarcerated people, block incentives that encourage those who need it most from participating in recidivism-reduction programming, and risk retraumatizing victims of crime."

FreedomWorks has this even longer posting on this front titled "The Senate Must Reject Poison Pill Amendments to the First Step Act."  Here are excerpts that provide a taste of the arguments being made against these amendments:

Aside from the fact that the Cotton-Kennedy amendments have been introduced to hurt the First Step Act’s prospects of passage, there are a number of problems with the amendments that we’ve identified. For these reasons, we encourage the Senate to reject the amendments when they are brought to the floor for a vote.

Amendment 1: Excluding serious felons from early release to prerelease custody and supervised release

This amendment seems to be more of the same type of objections raised by Sen. Cotton in the past regarding the exclusions list on the prison reform side of the bill. The exclusions list is already superfluous because of the risk and needs assessment, which in its operation ensures that those who have committed such heinous crimes as Sen. Cotton has identified, will not become low- or minimum-risk of recidivism in order to earn time credits....

Amendment 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment masquerades as a harmless addition to promote victims’ rights, which is certainly a sympathetic cause. However, the amendment is not only redundant to current law and policy but its approach is also counterproductive and harmful for victims....

Amendment 3: Tracking the effectiveness of the anti-recidivism programs

This amendment creates redundancy. The U.S. Sentencing Commission already provides detailed information on the recidivism rates of federal offenders. Although the measure of recidivism varies by report, the rates of rearrest, reconviction, and reincarceration are accounted for in many reports.

Although the rate of recidivism defined by rearrest is a common data point in U.S. Sentencing Commission reports, this is a poor measure. It is likely, though, that this measure is the one included in the amendment by its authors on purpose and for that very reason....

Additionally, the First Step Act as it stands already includes multiple mechanisms to ensure the effectiveness of the anti-recidivism programming and other aspects of the legislation as well. The First Step Act includes its own reporting requirements, establishes an Independent Review Committee to report on the system, and requires a Government Accountability Office report of the risk and needs assessment and the programming together.

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 
• Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!! 
• Latest developments and discussions surrounding FIRST (baby) STEP Act
• Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy

MORNING UPDATE on Dec. 17, 2018: I have receive a one-page response to the arguments linked above in a document titled "Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step." Here it is for downloading: Download Final Cotton-Kennedy Myths v. Facts

In addition, Senator Cotton has this new commentary at the National Review making the case for his proposed amendments under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."    This commentary closes with a passage that I will be discussing in a subsequent post, but here I will reprint how it starts:

This week, the Senate will vote on the latest version of the First Step Act, a criminal-justice bill that would release thousands of dangerous criminals from federal prison earlier than under current law.  This effort is misguided and dangerous, as I have written before.  Thankfully, there is still time to limit the damage.

Along with Senator John Kennedy, I have introduced an amendment to categorically exclude violent felons and sex offenders from the bill’s time-credit program, which can be used for early release.  We also have amendments to notify victims before a prisoner is released early, and to monitor whether prisoners who are released early commit more crimes. If advocates of First Step want to protect public safety, they will support all three amendments.

Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases

Long-time readers may recall regularly blogging here about federal district and circuit opinions struggling to figure out whether and how courts could impose restitution awards/punishments on federal offenders convicted only of downloading child pornography images.  Because the child porn restitution questions produced various splits in the lower courts, the Supreme Court took up and "resolved" these issues in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  But because Paroline required federal judges, in the words of one district court, to make "essentially a wild-ass guess" when trying to determine the appropriate level of restitution for a victim in a child porn downloading case, this issue continued to cry out for a legislative fix in the wake of the Paroline ruling.

A few days after the Supreme Court ruled in Paroline, I asked in a post "Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?".  And a few years after the Supreme Court ruled in Paroline, victim advocates Paul Cassell and James Marsh talking through these issues in a law review article "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response".  Now, a little more than 55 months after the Supreme Court ruled in Paroline, Congress managed to get a Paroline fix done in a bipartisan fashion. 

Specifically, Congress used its lame duck session to finalize a long-discussed Paroline fix in the form of an amendment to federal restitution statutes called the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018."   President Trump, as reported in this press release, on Friday signed this legislation into law.  Senator Orrin Hatch, who played a leading role in getting this enacted, released this press statement celebrating and explaining this new legislation:

Senator Orrin Hatch (R-UT), the senior Republican and President Pro Tempore of the US Senate, released the following statement after the President signed the Amy, Vicky, and Andy Child Pornography Victim Assistance Act into law. Senator Hatch introduced the legislation alongside Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Amy Klobuchar (D-MN), John Cornyn (R-TX), and Pat Toomey (R-PA). This bill recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will support victims.

“I’m thrilled the President has signed the Amy, Vicky, and Andy Act into law. This is a momentous day and many years in the making.” Hatch said. “This bipartisan legislation will provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. I am proud of this legislation and look forward to seeing it change the world for good.” The legislation establishes more relevant standards for child pornography victims who seek restitution from defendants and gives victims the alternative of a one-time fixed compensation payment from the existing Crime Victims Fund. The bill also allows victims access to the images depicting them, which can be important for victim identification, expert testimony, forensic review, and treatment.

The bill passed in the Senate by unanimous consent in January. With the help of Congressman Trey Gowdy (R-SC), the House sponsor of the bill, and House Judiciary Chairman Bob Goodlatte (R-VA), the House of Representatives passed an amended version of the bill by unanimous consent. In November, the Senate passed the amended bill by unanimous consent, and ... was signed by the President into law.

The bill is named after victims depicted in some of the most widely circulated child pornography series in the world. “Amy,” “Vicky,” and “Andy” all strongly support the bill.

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act includes the following provisions:

• Findings that focus on the unique nature of child pornography crime and how it harms victims
• A more relevant and predictable definition of “full amount of a victim’s losses”
• Restitution: --- Child pornography production: victims receive full amount of their total losses; ----Child pornography trafficking: victims receive from each defendant a minimum of $3,000
• Compensation: --- Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 in defined monetary assistance (which is indexed to inflation) from a Child Pornography Victims Reserve (CPVR) within the federal Crime Victims Fund (CVF); --- Caps fees for attorneys representing a victim seeking defined monetary assistance at 15%; --- The court must assess defendants in child pornography cases to contribute to the CPVR: up to $17,000 for possession, up to $35,000 for distribution, and up to $50,000 for production crimes; --- The CPVR will be capped at $10 million
• Victims of child pornography trafficking will enjoy the same priority in restitution payments as victims in other restitution statutes
• Child pornography victims have equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony
• The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve

I have long been a support of more effective and predictable restitution mechanisms in these  kinds of cases and others, so I welcome this overdue development.  Because few have been reporting consistently on the impact of the Paroline ruling in federal cases, I am especially glad this legislation give the Justice Department a responsibility to report on this new legislation's effectiveness.

A few (of many) prior posts on Paroline and child porn restitution issues mostly from some years ago:

• SCOTUS splits the difference for child porn restitution awards in Paroline
• Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?
• "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
• "Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses" 
• Fascinating NY Times magazine cover story on child porn victims and restitution
• "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
• Explaining why I am rooting so hard for "Amy" in Paroline
• Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline 

The latest controversy over a lenient sentence involving sexual assault comes from Alaska

This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir.  The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:

Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage. 

The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her.  Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.

What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.

However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.

Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....

Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.

Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.

On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.

Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”

Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen.  In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.

He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.

Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...

In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense.  If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender.  However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.

Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under.  However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...

The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.

The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.”  When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.

"A Reparative Approach to Parole-Release Decisions"

The title of this post is the title of this paper authored by Kristen Bell recently posted to SSRN. Here is its abstract:

Scholars have argued for enhanced procedural protections at parole hearings, but for the most part without a focus on what substantive criteria ought to guide parole-release decisions.  I undertake this normative project, first describing the approach to parole-release decision criteria from the perspective of four standard theories of punishment: retributive theory, deterrence theory, rehabilitation theory, and communicative theory.  I argue that each of the respective criteria flowing from these theories of punishment is morally objectionable on two grounds: failure to respect the agency of prisoners, and failure to take seriously the limits of our knowledge.  After setting forth these theories and the objections to which they are subject, I turn to draw lessons from how California’s parole-release system functions in practice.

Drawing on both the theoretical and practical perspectives on parole-release criteria, I argue in favor of a fundamental change.  I propose a “reparative approach” that builds on aspects of restorative justice and takes seriously respect for the moral agency of prisoners, victims, and the broader political community.  On this approach, people directly affected by the crime join with others at the outset of a prisoner’s sentence to deliberate and decide upon reasonably achievable criteria that the prisoner would need to meet in order to be released.  At the end of the prisoner’s judicially prescribed period of incarceration, the release decision would then be a ministerial determination of whether the prisoner has in fact met the criteria that were decided upon at the outset.  I leave for future work the question of whether and how such a policy could be implemented in the context of the contemporary American criminal justice system.

High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

A high-profile drug arrest in Las Vegas late last week presents a high-profile setting to explore all of the legal uncertainty that necessarily surrounds the modern drug war.  This CBS/AP story, headlined "Tech billionaire Henry Nicholas facing drug trafficking counts in Vegas," provides some of the basics:

Tech billionaire and advocate of crime victims Henry T. Nicholas III is facing drug counts after being arrested along with a woman Tuesday at a Las Vegas Strip casino-resort. Nicholas was arrested on suspicion of trafficking heroin, cocaine, meth and ecstasy, Las Vegas police officer Larry Hadfield said Thursday. He added police responded to the casino-resort following a report from security, which had found contraband in a room [this local piece provides more details of the search and seizures]....

The woman arrested with Nicholas was identified as Ashley Fargo, reportedly the ex-wife of an heir to the Wells Fargo fortune. Hadfield said she faces the same counts as Nicholas. Court records show she has also been released on her own recognizance. Records for the pair show a court hearing scheduled for September.

Attorney and legal analyst Alex Kazarian tells CBS Los Angeles it's likely Nicholas didn't intend to traffic drugs -- but his intent may not matter. "It sounds like his biggest crime is being an addict," Kazarian said. "He's a billionaire. He's not a person that's trying to make money off of drugs. He's a person that's trying to make friends off of drugs. Unfortunateley, the way the laws are written, if you're giving away drugs or if you're selling drugs, you're trafficking."

Nicholas co-founded high-tech chipmaker Broadcom Corp. in 1991 and resigned as president and CEO in 2003. In 2008, he was indicted on narcotics and securities fraud charges. The charges in the securities case were dismissed in 2009 and the narcotics case in 2010.

The billionaire is an advocate for crime victims and has bankrolled ballot measures in the U.S. to guarantee them and their family members some rights. The so-called "Marsy's Law" victims' bill of rights is named after Nicholas' sister, Marsalee "Marsy" Nicholas, a California college student who was stalked and killed in 1983 by an ex-boyfriend.

Five states - California, Ohio, Illinois, North Dakota and South Dakota - have a Marsy's Law on their books.... In Nevada, Marsy's Law will appear on the ballot in November as a legislatively referred constitutional amendment, after the measure was approved during the 2015 and 2017 legislative sessions, as required by law. Nevada Attorney General Adam Laxalt, Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson have previously endorsed the measure.

As people who work in the drug policy and reform space know well, the dividing line between being a "drug possessor" and a "drug trafficker" can often be a thin one and this story seems to effectively highlight this reality. Moreover, given the extraordinary work that Nicholas has done to promote victim involvement in the criminal justice system, this case provides an interesting setting to explore who can and should be able to claim to be a victim of a "drug trafficker."  In addition, here are some more details about Nicholas's prior involvement with drug charges from this local piece:

In a 2008 federal indictment, Nicholas was accused of possessing and conspiring to distribute drugs, including ecstasy, cocaine and methamphetamine. According to federal court records, he was accused of distributing and using drugs on a private flight between Orange County and Las Vegas, “causing marijuana smoke and fumes to enter the cockpit and requiring the pilot flying the plane to put on an oxygen mask.”  The charges against him were dropped in 2010, court records show.

Because charges were drop in the prior case, Nicholas would not qualify as a repeat drug offender subject to recidivist sentencing enhancements. But I cannot help but wonder why and how prior federal drug distribution charges were dropped against him, while also thinking somebody else might get labelled a serious drug offender with this kind of history without Nicholas's legal good fortunes so far.

SCOTUS limits reach of Mandatory Victims Restitution Act in Lagos ... and talks about Fourth Amendment

The US Supreme Court handed down two opinions and a dismissal this morning, all from the criminal side of its docket.  The one sentencing decision came in Lagos v. United States, No. 16-1519 (S. Ct. May 29, 2018) (available here).  Here is hope the unanimous opinion by Justice Breyer gets started:

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to

“reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.  In our view, they are limited to government investigations and criminal proceedings.

Got that? The short Lagos opinion goes on to provide a mini-primer on federal restitution statutes, but both the issue and the opinion here ensures this ruling will not be too long remembered.

Also not to be too long remembered is a DIG (dismissed as improvidently granted) from SCOTUS today in City of Hays, Kansas v. Vogt, No. 16-1495.  The only SCOTUS decision today likely to get any real attention is a Fourth Amendment ruling in Collins v. Virginia, No. 16-1027 (S. Ct. May 29, 2018) (available here).  Justice Sotomayor starts the opinion for the Court off succintly: "This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not."  Justice Alito dissents alone, starting this way: "The Fourth Amendment prohibits 'unreasonable' searches. What the police did in this case was entirely reasonable. The Court’s decision is not."

The merits aside, the Collins decision will really garner attention because of a lengthy concurrence by Justice Thomas.  Writing alone, he urges the Court to reconsider the reach of the exclusionary rule.  Here is how his opinion starts and ends:

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case.  Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States.  The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting)....

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States.  We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution.  We should do so.

Sad uncertain realities behind ugly headline about child rape sentencing

The headline of this story understandably caught my attention and had me wondering: "California man sentenced to 90 days of house arrest for rape of 5-year-old girl."  A bit of digging revealed, via press reports here and here, a bit more of the story behind the story that would seem to partially explain this outcome.  Excerpts below come from the two linked pieces, respectively:

A 79-year-old man who pleaded no contest to felony statutory rape of a child was sentenced this week to 90 days' detention and will not have to register as a sex offender. The sentence upset the parents after they gave emotional testimony at the hearing....

Despite the word "rape," the crime did not involve penetration, said Robert Himelblau, supervising deputy district attorney for San Joaquin County. Gregory Davenport, an attorney for Burgess, said the charge is based on a claim by the girl's mother that she saw Burgess stick his hand down her daughter's pants in 2016.

At the hearing, the judge reminded the parents that they thought the plea agreement was fair when it was reached.... Davenport told the Associated Press on Friday that Burgess accepted the plea deal despite being innocent because he is in frail health and wanted to move on with his life. Burgess denies ever touching the child inappropriately. "The whole case was based upon some minor touching that my client denied even occurred," Davenport said....

Lyle Burgess, 79, was sentenced by San Joaquin County Superior Court Judge Ron Northup to either 90 days in an alternative-work program or in-home detention plus five years of informal probation. He does not have to register as a sex offender.

Burgess, who founded Rare Parts Inc. in Stockton in 1981 — an automotive parts manufacturer and distributor — will in all likelihood opt for in-home detention due to his frail physical and mental health, according to defense attorney Gregory Davenport. “My client maintains his innocence,” Davenport said outside the courtroom.

During Wednesday’s sentencing hearing, both parents of the victim gave emotional testimony about what their daughter has been going through, the impact on their family and their dissatisfaction with Burgess’ conviction. The parents’ names are not being used to protect the identity of the minor victim. “Our daughter has been harmed by this man continuously,” the victim’s mother said through tears, describing two incidents she says she witnessed between Burgess and her daughter at Burgess’ cabin in Calaveras County in the fall of 2016.

“I’m incredibly disgusted by his behavior and continuously disgusted by his lies,” she said before describing his sentence as “getting off so easy” and not registering as a sex offender. “I want other kids to be protected by possible future abuse by this man,” she said.

The victim’s father, who has known Burgess for more than two decades, said: “I don’t have too many prized possessions in this world other than my family. (My daughter) will remember this the rest of her life. She sleeps on the floor outside our room.”

Northup told the parents their statements do have an impact but “courts are somewhat limited” in ruling on a negotiated plea and reminded them that at the time it was reached, they felt it was fair.

The parents and the victim recently filed a civil case against Burgess seeking unspecified damages for sexual abuse and intentional infliction of emotional distress.... Davenport, Burgess’s attorney, said: “I believe the allegations are motivated by greed. They are using this instance to try to gain financially.”

I do not know the ins-and-outs of California plea and sentencing procedure, but these articles suggest that the sentence here was largely determined by the terms of a plea deal (and one that the parents of the victim assented to).  This other local article, notably, provides this additional (confounding?) account of matters from the prosecutors:

According to the San Joaquin County District Attorney's Office, Burgess' sentence was initiated by the county court because of his age and health.  When Burgess was arrested in 2016, he was originally booked on four counts of lewd acts upon a child.  The charge was later changed to unlawful sexual intercourse with a minor, though the DA says there were no allegations the girl was "sexually penetrated." Prosecutors say the plea deal was agreed upon by both Burgess and the girl's family.

I do not know what it means for this sentence to have been "initiated by the county court because of his age and health," but I do know it now sounds as if the sentencing judge largely attributes the outcome to the plea deal and the prosecutions largely attribute the plea deal to the sentencing judge.   As I see it,  sadness persists from every perspective in this case.  And I surmise from my Twitter feed that the case is generating anger, too, and I wonder if recall or other campaigns targeting the judge or DAs might be in the offing.

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

Interesting accounting of history and modern realities of victims' rights

The New Yorker has this notable lengthy new article authored by Jill Lepore under the headline "The Rise of the Victims’-Rights Movement: How a conservative agenda and a feminist cause came together to transform criminal justice."  The article covers lots history (with a particular focus on the importance of the Oklahoma City bombing) along with considerable law and policy (taking mostly a jaundiced view on victim rights). I recommend the piece in full, and here are a few excerpts:

Because victims’ rights is a marriage of feminism and conservatism, the logic behind its signal victory, the victim-impact statement, rests on both the therapeutic, speak-your-truth commitment of a trauma-centered feminism and the punitive, lock-them-up imperative of law-and-order conservatism.  Arguably, this has been a bad marriage....

Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.

How much evidence is enough, or too much?  Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless.  What kind of evidence is allowed?  Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.”  Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements.  Sorrow knows no bottom....

Thirty-two states have passed victims’-rights amendments; five more ballot initiatives may pass in November. Once enough states have acted, activists will again press for a federal amendment.  The last time the measure reached Congress, one of the prosecutors in the Oklahoma City bombing case argued against it (victims had tried to prevent one of McVeigh’s associates from signing a plea agreement in exchange for his testimony against McVeigh, which proved crucial in the trial).  [Paul] Cassell believes that there is much more work to be done.  The movement’s latest campaigns would expand the range of victim-impact evidence allowed in both capital and non-capital cases, and more strictly enforce victims’ rights that are already on the books.  In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing.  Tragedy is a fierce tailwind.  And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”

Critics remain.  Nancy Gertner, a former district-court judge from Massachusetts, is among those who have questioned Judge Aquilina’s conduct at Larry Nassar’s sentencing. Gertner told me, “The question is whether the victims needed that, as bloodletting, and the question is should the justice system allow that?  Or is it a throwback to public hanging?” Scott Sundby, a former prosecutor who studies capital juries, told me that the Nassar sentencing reminded him of Biblical punishments.  “Hey, we all get to pick up a rock and throw it at this person!”

Oregon Supreme Court orders resentencing upon finding violation of crime victim's right to be heard at sentencing

The Supreme Court of Oregon handed down an interesting unanimous opinion yesterday concerning the rights of a victim at sentencing under the Oregon Constitution in Oregon v. Ball, 362 Or 807 (Or. May 2, 2018) (available here). Here is how the opinion gets started:

The Oregon Constitution provides that the victim of a crime has the right “to be heard at * ** sentencing.” Or Const, Art I, § 42(1)(a).  Appellant, who is a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. Specifically, appellant alleged that the trial court violated her right to be heard when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation.  The trial court denied the claim, and appellant brought this appeal, pursuant to ORS 147.535.

This case requires us to determine the scope of a crime victim’s constitutional right to be heard during a sentencing hearing.  As explained below, we hold that a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative.  In addition, a trial court may limit a victim impact statement if the victim disregards the trial court’s appropriate instructions regarding the content or length of the statement.  We further hold that, in this case, the trial court’s interruptions of appellant’s statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant’s right to be heard.  However, the trial court’s termination of appellant’s statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant’s right to be heard.  Therefore, we reverse the trial court’s decision denying appellant’s claim, vacate defendant’s sentence, and remand the case to the trial court for a new sentencing hearing.

"Victims of crime and reformers should work together on criminal justice reform"

The title of this post is the headline of this Washington Examiner commentary authored by Jordan Richardson, Laurie Garduque, and Mai Fernandez.  Here are excerpts:

Recent criminal justice reforms, such as the creation of alternatives to incarceration and the tearing down of barriers to reentry from prison, have resulted in significant changes around the country.  Nonetheless, there’s one thing that has remained the same: policymakers are failing to consult crime victims prior to the development and deployment of these reforms.

This National Crime Victims’ Rights Week, we urge jurisdictions across the country to bring victims to the table and ask them what they think about criminal justice reform and how they can create a criminal justice system that better takes into account how to make victims whole.  Their suggestions may be surprising, and they will help ensure that the changes policymakers create will serve everyone affected by the justice system....

Too often, reformers avoid considering victims’ views because they assume the victims’ highest priority is punishment.  But this is far from the truth.  Recent polling published in 2017 by the Alliance for Safety and Justice found that only 4 percent of crime victims believe that “too few people in prison” contributes to crime in their community.  In fact, 86 percent of victims believe that programs providing rehabilitation and drug and mental health treatment for people already in the justice system should receive more funding.

In order to encourage more crime victims to participate in improving our criminal justice system, The National Center for Victims of Crime has solicited feedback from victims and their advocates around the country. They found that victims seek reliable, sufficient, and accessible services, and they want justice system transparency and trauma-informed responses to their experiences. Crime victims also believe the justice system should be dedicated in part to making victims whole again, beginning with providing notification and protection for victims when formerly incarcerated individuals reenter the community.

Furthermore, victims think that if people are enrolled in diversion programs such as mental health courts or ordered to participate in drug treatment as part of their probation, these services should be affordable, effective, and adequately supervised.  Lack of participant accountability causes victims to distrust and not want to engage with the justice system.

Crime victim survivors deserve a voice at the policy reform table. Many are strong supporters of the exact types of reforms criminal justice experts are advocating. They want their experiences to be acknowledged, and they want our justice system to be sensitive and respectful of their needs....

Ensuring that people coming out of prison have a chance to succeed should be a top concern, and victims can play a key role in informing policymakers about how to achieve public safety while respecting the human dignity of everyone involved.

Reformers must be willing to recognize that victims have been affected by unfair justice system policies and practices. They must also respond with adequate funding, research efforts, and resources. The question is, “How can we develop and transform our criminal justice system to improve services for everyone involved?”  We cannot afford to leave victims out of criminal justice reform.

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

Mass molester Larry Nassar in state court for his third and final sentencing

When a person has committed a whole lot of serious crimes, he may well face a whole lot of serious sentencings.  Former doctor Larry Nassar is the latest high-profile example of this reality, and this AP piece reports that he is today in Michigan state court for his third sentencing proceeding.  Here are detail about this final sentencing and some of the continuing buzz about his last state sentencing:

The final sentencing hearing began Wednesday for disgraced former sports doctor Larry Nassar, who will again be confronted by scores of victims as he faces another prison sentence for molesting gymnasts at an elite Michigan club run by an Olympic coach.

Judge Janice Cunningham has set aside several days for roughly 60 people who want to confront Nassar or have their statement read in court. The hearing could unfold much the same as a hearing last week in another county where a different judge allowed more than 150 women and girls to confront Nassar about his abuse. That hearing ended with Nassar getting sentenced to 40 to 175 years in prison, with the judge describing it as Nassar's "death warrant."

The practice of allowing accusers to speak even if they are not tied directly to a case has raised questions about fairness. But attorneys say the victim statements probably pose little risk on appeal, especially since Nassar pleaded guilty, agreed to allow the statements and is expected to get another long prison sentence as part of his deal with prosecutors. "If you get what you bargained for, then you really can't argue that you were prejudiced in any way," said Margaret Raben, former leader of a Michigan association of criminal defense attorneys.

It's not uncommon for prosecutors to introduce "aggravating" evidence at sentencing to support their request for a severe punishment. But the parade of victims offering emotional accounts of their abuse to the face of an abuser went well beyond the typical hearing. Raben said there was a "horrible dynamic" last week in Judge Rosemarie Aquilina's courtroom, even if the judge had the option to allow so many people to speak in a case that involved just seven victims.

"Her obvious delight was just off the wall," Raben said, referring to Aquilina's "death warrant" remark and others. "I am not defending Larry Nassar at all, but what I saw with her was a real abandonment of judicial demeanor. ... The process doesn't change because everybody hates the defendant. That is the absolute glory, or should be, of the American justice system."

A fellow Ingham County judge, William Collette, said Aquilina's handling of the hearing was "outrageous." Others, however, have praised her treatment of victims and their parents.

The case on Cunningham's docket Wednesday in Eaton County centers on Nassar's assaults at Twistars, a Lansing-area gymnastics club that was run by 2012 Olympic coach John Geddert. Nassar admits penetrating three girls with his hands when he was supposed to be treating them for injuries.

So far, 57 victims want to speak in court or submit statements. Attorney Mick Grewal said 11 of his clients have signed up, including some who were inspired by the 150-plus young women and girls who appeared in Aquilina's court. He called it a "cathartic experience." "Now they're at a point in their healing process where they want to confront Larry, and they want to show the world that they are survivors and they are strong and they are part of this movement," Grewal said. "It helps them through the healing process."

He said the Nassar cases are extraordinary in the number of victims who have come forward. "The only case that's out there that's even similar in stature is Penn State, and this is now six times as big as Penn State, maybe seven times," Grewal said, referring to boys who said they were sexually abused by assistant football coach Jerry Sandusky.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
• Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
• Still more notable commentary on judicial conduct in sentencing of mass molestor

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

• Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
• Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
• Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing

The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:

General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence."  We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process.  We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here.  We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society."  Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010).  The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision.  They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone.  We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.

We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.  We affirm.

UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week.  The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:

Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

My local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?