Sentencing Law and Policy

"Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing"

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

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing.  This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice.

First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice.  Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime.  Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts.  Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process.  Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. S ixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance.  Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority.

This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

"Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment"

The title of this post is the title of this new paper authored by Alexandra Giannidi available via SSRN.  Here is its abstract:

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception.  This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation.

According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference.  In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort.  It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law.

But does the turn to victims that the republican theorists envision come at a cost for offenders?  On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders.  On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality.  It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

"Justice for None: How Marsy's Law Undermines the Criminal Legal System"

The title of this post is the title of this lengthy new report released today by the National Association of Criminal Defense Lawyers.  Here is part of the report's executive summary:

Marsy’s Law is the colloquial name for a model Victims’ Bill of Rights that enshrines victims’ rights within state constitutions. Marsy’s Law was first passed in California in 2008 and has since been adopted in 12 states....

This report aims to shed light on the impact of Marsy’s Law.  While Marsy’s Law proponents argue that the impact on due process for accused individuals has been minimal while the benefits for victims have been immense, legal challenges and news reports from impacted states suggest otherwise.  Many of the provisions of Marsy’s Law are impractical and conflict with the constitutional due process protections for defendants.  There is a need for systematic scrutiny of Marsy’s Law across impacted states to study its impact including identifying challenges, unintended consequences, and the gaps in the collective knowledge and awareness of its effects.  While there has been vocal opposition to Marsy’s Law from many stakeholders including defense attorneys, civil rights groups, a bipartisan group of state legislators, legal experts, victim advocates, and police chiefs and sheriffs, these critiques have largely been siloed within their respective states.

This report synthesizes existing information on Marsy’s Law and presents the findings of new research on the effects of Marsy’s Law in impacted states.  Case law, legal and expert analysis, stakeholder experiences, and empirical research are utilized to provide insights on the impact and consequences of Marsy’s Law on the criminal legal system, including effects on accused individuals, victims, and public safety. In addition to the secondary data (e.g., court rulings, newspaper articles, press releases), a mixed-methods approach was used to gather data from stakeholders in impacted states.  The aim of this research was to obtain an understanding of how Marsy’s Law has impacted the criminal legal system in their states, and their experiences before and after implementation.  A quantitative survey instrument was designed and administered to a variety of stakeholders.  This report presents the results of the experiences of defense attorneys (n=299) in impacted states.  Second, focus groups with defense attorneys and other relevant stakeholders were conducted to bring to light in-depth expertise and experiences with Marsy’s Law.

"The Victims' Rights Mismatch"

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

A puzzling mismatch lurks inside victims’ rights law.  Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death.  This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response.

The mismatch persists because American jurisdictions assign a single bundle of rights to anyone denominated as a “victim.”  In dead-victim cases, however, the primary bearers of interpersonal harm are gone.  Instead, their rights are assumed by aggrieved family members and legal estates.  In those third-party scenarios, justifications for victim participation and influence collapse.

Mismatch presents normative problems along two dimensions.  Along the deontological one: rights to expression and confrontation expire with dead victims, third-party input doesn’t provide information about retributively significant harm, and dead-victim cases immorally sensitize punishment to the social worth of decedents.  Along the consequentialist dimension, third-party involvement affects punishment at margins that have no plausible effect on deterrence or incapacitation, and victim involvement can’t promote legitimacy when it estranges vulnerable communities.

A better institutional response is straightforward: victims’ rights should be tiered.  In dead-victim cases, they must always be conceptualized as the first-party rights of survivors, rather than third-party rights asserted on behalf of decedents.  Surviving harm bearers can retain rights to notice, protection, and even restitution, but rights to other forms of participation and influence should be severely restricted.

Former Solicitor General Ted Olson, husband of 9/11 victim, says plea deal with 9/11 defendant was "best possible outcome"

The New York Times has this notable new piece with quotes from a notable lawyer about the (now revoked) plea agreement that would have taken away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  Here are excerpts:

A former solicitor general of the United States whose wife was killed on Sept. 11, 2001, said he was relieved to hear that a plea agreement had been reached in the case, and puzzled when the secretary of defense upended the deal.

Last week, a senior Pentagon official who oversees the military commissions signed a plea agreement with the man accused of planning the attacks and two other defendants. Then, two days later, Defense Secretary Lloyd J. Austin III rescinded it, stirring uncertainty in the case at Guantánamo Bay....

“I don’t think I can opine on whether the secretary of defense had the authority to do what he did,” Theodore B. Olson, the former solicitor general, said in an interview on Tuesday with The New York Times, breaking his silence on the plea deal. “But it does strike me as very unusual that someone with authority to enter into these negotiations would make a deal with these defendants and the government would turn around and renege on the deal, to abrogate the deal.”

His wife, Barbara K. Olson, 45, a conservative legal analyst, was a passenger on American Airlines Flight 77 and on her way to Los Angeles for a television appearance when the plane was flown into the Pentagon in the Sept. 11 attacks.

At the time of the attack, Mr. Olson was serving as President George W. Bush’s solicitor general, the top lawyer responsible for Supreme Court cases for the administration. He said he was informed last Wednesday that prosecutors had reached a plea agreement the same way as other Sept. 11 family members on a Defense Department roster: in an email.

Mr. Olson called the resolution reached “the best possible outcome.” “There was never going to be an enforceable death penalty anyway,” he said. “It was not going to happen and this was going to go on forever and ever.”...

Mr. Olson emerged as an influential voice in favor of plea agreements in February, as negotiations were continuing behind the scenes in the case. He declared the military commissions at Guantánamo Bay a failure — “We tried to pursue justice expeditiously in a new, untested legal system” — and said any capital conviction that emerged from the court was doomed to years of appeals.

Deep divisions exist among relatives of the 2,976 people who were killed that day over how they think the case should be resolved. Some family members and their supporters say nothing short of the execution of Mr. Mohammed should resolve the case. Others argue the United States lost its moral authority to execute the men because they were tortured by the C.I.A....

Increasingly, a third group has emerged arguing that it would endorse the death penalty but, after 12 years in pretrial hearings, a resolution of the case should be a top priority through plea negotiations, which necessarily take death off the table.

Mr. Olson was very sympathetic to family members who “wanted to pursue this to the end of the earth as far as the death penalty is concerned,” he said. “But I thought that was not going to be possible. This had been going on for 20 years.”

“The best resolution, and I know people would disagree with me, and I respect other people’s opinions on this, especially the families, the best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate and their sentence is life imprisonment. Period.”

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals

Crash victims' families formally object to proposed Boeing plea deal

In this post last month, I asked "Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?".  I now see via this post by Paul Cassell over at The Volokh Conspiracy that he has helped file "a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated."  Here is the lengthy motion's introductory statement:

Boeing’s lies to the FAA directly and proximately killed 346 people, as this Court has previously found.  ECF No. 116 at 16.  And yet, when the Government’s and Boeing’s skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention.  Instead, what emerged from the negotiations was a plea agreement treating Boeing’s deadly crime as another run-of-the-mill corporate compliance problem.  The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the “effectiveness of the Company’s compliance program and internal controls, record-keeping, policies, and procedures ….” Proposed Plea Agreement, Attachment D, at ¶ 3.  And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing’s true culpability.

The families object, as the Crime Victims’ Rights Act gives them the right to do.  See 18 U.S.C. § 3771(a)(3) (giving victims’ representatives the right “to be reasonably heard” regarding a “plea”).  The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families’ first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a “binding” plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused.  This Court has previously stated that when it has authority “to ensure that justice is done,” then “it would not hesitate.” ECF No. 186 at 29.  This proposed agreement is not justice.  The Court should not hesitate to reject it.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?

The question in the title of this post is prompted by some notable new corporate news that is also a federal sentencing story.  This AP piece, headlined "Boeing accepts a plea deal to avoid a criminal trial over 737 Max crashes, Justice Department says," provides the basics:

Boeing will plead guilty to a criminal fraud charge stemming from two crashes of 737 Max jetliners that killed 346 people, the Justice Department said late Sunday, after the government determined the company violated an agreement that had protected it from prosecution for more than three years.

Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. Prosecutors accused the American aerospace giant of deceiving regulators who approved the airplane and pilot-training requirements for it.

The plea deal, which still must receive the approval of a federal judge to take effect, calls for Boeing to pay an additional $243.6 million fine. That was the same amount it paid under the 2021 settlement that the Justice Department said the company breached. An independent monitor would be named to oversee Boeing’s safety and quality procedures for three years. The deal also requires Boeing to invest at least $455 million in its compliance and safety programs.

The plea deal covers only wrongdoing by Boeing before the crashes in Indonesia and in Ethiopia, which killed all 346 passengers and crew members aboard two new Max jets. It does not give Boeing immunity for other incidents, including a panel that blew off a Max jetliner during an Alaska Airlines flight over Oregon in January, a Justice Department official said. The deal also does not cover any current or former Boeing officials, only the corporation. In a statement, Boeing confirmed it had reached the deal with the Justice Department but had no further comment.

In a filing Sunday night, the Justice Department said it expected to submit the written plea agreement with a U.S. District Court in Texas by July 19. Lawyers for some of the relatives of those who died in the two crashes have said they will ask the judge to reject the agreement. “This sweetheart deal fails to recognize that because of Boeing’s conspiracy, 346 people died. Through crafty lawyering between Boeing and DOJ, the deadly consequences of Boeing’s crime are being hidden,” said Paul Cassell, a lawyer for some of the families.

Federal prosecutors alleged Boeing committed conspiracy to defraud the government by misleading regulators about a flight-control system that was implicated in the crashes, which took place than less five months apart. As part of the January 2021 settlement, the Justice Department said it would not prosecute Boeing on the charge if the company complied with certain conditions for three years. Prosecutors last month alleged Boeing had breached the terms of that agreement.

U.S. District Judge Reed O’Connor, who has overseen the case from the beginning, has criticized what he called “Boeing’s egregious criminal conduct.” O’Connor could accept the plea and the sentence that prosecutors offered with it or he could reject the agreement, likely leading to new negotiations between the Justice Department and Boeing.

I know very little about corporate criminal prosecutions or about the detailed specifics of this case. But I know that former federal judge Paul Cassell is a tireless advocate for crime victims, and this new Reuters commentary, headlined "Boeing 737 MAX crash victims’ families could disrupt new plea deal with US," provides a lot of background on the possibility of the victims' families disrupting this deal. It closes this way:

Crucially, the plea agreement — unlike Boeing’s deferred prosecution agreement — must be approved by O’Connor. That requirement, said family members’ lawyer Cassell, give his clients a shot at blocking the deal. “The standard that a judge applies when reviewing a plea deal is more rigorous than it is for a deferred prosecution agreement,” said Cassell. “Make no mistake: Judge O’Connor has the authority to reject the plea agreement.”

The Justice Department is already bracing for the families’ opposition. Prosecutors told O’Connor that they’d demanded additional concessions from Boeing after meeting several times with family members and their counsel, but that some family members continued to oppose the deal. (The Justice Department did not say how many families are opposed.) The government asked the judge to postpone a hearing to give both sides time to submit briefs on the proposed deal and to allow family members to make travel plans to attend a hearing in person.

Cassell, a retired federal judge, told me that the crash victims’ families have already succeeded in “shaking up business as usual in the criminal division of the Justice Department.” Now we’ll see if his clients and other families can use their leverage to force additional relief from Boeing.

"Victims’ Participation in an Era of Multi-Door Criminal Justice"

The title of this post is the title of this new article now on SSRN authored by Béatrice Coscas-Williams, Hadar Dancig-Rosenberg and Michal Alberstein. Here is its abstract:

Victims’ right to participate in their cases — to hear and be heard — has gained formal recognition in both common law and continental legal cultures over the past two decades. Paradoxically, even as victims’ rights are acknowledged, their participation in the judicial process is increasingly circumscribed due to the proliferation of abbreviated and efficiency-oriented judicial procedures.  Focusing on this paradox, this Article uncovers and analyzes the level of victims’ participation in an era of convergence and transformation of legal cultures and traditions.  By exploring new ways to conceptualize the role of victims within contemporary criminal legal systems, this Article explores various and creative paths to enhance victims’ participation in an era characterized by the vanishing trial and a multi-door criminal justice system.

DOJ's Office for Victims of Crime proposes new rules to enhance the federal crime victim compensation program

As reported in this new AP piece, the "Justice Department proposed changes Monday to rules governing state-run programs that provide financial assistance to violent crime victims in order to address racial disparities and curb the number of subjective denials of compensation." Here is more:

The proposal from the Justice Department’s Office for Victims of Crime, a major overhaul to how states across the U.S. currently handle victims compensation claims, comes less than a year after an Associated Press investigation exposed that Black victims were disproportionately denied in many states — often for subjective reasons rooted in implicit biases that are felt across the criminal justice system. If adopted, the changes would bar states from considering a victim’s criminal history and eliminate some of the most subjective reasons for denials in many states.

“Certain populations may be more likely to have criminal history due to unjustified disparate treatment in the criminal justice system or due to criminal conduct induced through force, fraud, or coercion, such as unlawful acts that traffickers compelled their victims to commit, and this can result in unjustifiably disproportionate denial of claims for those populations,” according to the proposal.

Thousands of Americans each year turn to the state-run victim compensation programs that provide financial assistance to victims of violent crime. The money is used to help with funeral expenses, physical and emotional therapy, lost wages, crime-scene cleanup and more. But the AP found last year that in 19 out of the 23 states willing to provide racial data, Black victims were disproportionately denied compensation. In Indiana, Georgia and South Dakota, Black applicants were nearly twice as likely as white applicants to be denied. From 2018 through 2021, the denials added up to thousands of Black families each year collectively missing out on millions of dollars in aid.

Thousands of people are denied compensation every year for often subjective reasons that scrutinize victims’ behavior before or after a crime. The AP found that Black victims were nearly three times as likely to be denied for these reasons, including a category often called “contributory misconduct” where programs sometimes, without evidence, accuse victims of causing or contributing to their own victimization.

The proposed changes would strictly limit when a state program can deny a person for misconduct including requiring that states put into law or policy what is specifically considered contributory conduct and the process they use to decide if it is being applied in a denial. The proposal also clarifies that state programs should not claw back money victims receive from crowdfunding sources such as GoFundMe among other changes....

Over the last decade, several states have passed laws or made administrative regulation changes to limit some of the most subjective kinds of denials. Other states have passed laws expanding access to the funding or adding covered expenses. Many of those changes came after victims and advocates protested, testified and urged lawmakers to change the rules.

Lenore Anderson, president and co-founder of Alliance for Safety and Justice, which organizes victims to advocate for criminal justice reforms, praised the federal office and the proposed changes. “These proposed reforms are a long time coming. Too many victims across the country have faced extraordinary barriers trying to get help in times of crisis,” she said, noting the proposals align with criticisms advocates have been hearing from victims for decades. “The Office for Victims of Crime is really focused on expanding victim access. They are really focused on securing fair access to help that is desperately needed in times of crisis. This is thoughtful rulemaking that should be applauded.”...

Many of the items in the proposal Monday give states more room to expand services and approve claims. The proposal would allow states to apply a broader definition to medical or mental health expenses to allow people in rural areas with fewer licensed providers to find care or to allow for Native American healing practices to be covered expenses. The proposal would allow for a broader definition of who would be eligible to include people beyond a close familial relationship to a victim and allow for states to create broader definitions of allowable property damage expenses that contribute to victim safety.

The publication of the proposed rule changes opens a 60-day public comment period. It can take several months to process those comments and submit final rule changes.

The Office of Victims of Crime provides more background and details about how to comment on these new proposed rule at this link.

Notable new resoures from National Crime Victim Law Institute

Via email I received word from the National Crime Victim Law Institute about two interesting new documents the NCVLI produced to help crime victims understand and safeguard their rights.  Here are links and some explanation from the email I received:

Identifying what remedies exist for a violation of a victim’s right can seem daunting; in fact, at times it can even seem like there are no options.  To help in this process we created a new resource.  Crime Victims' Rights Enforcement & Remedies is designed to answer some frequently asked questions about what rights enforcement can look like, and possible remedies for violations.  The resource includes citations for practitioners interested in reviewing case examples from around the country. In addition, it’s imperative to have an understanding of the most common victims’ rights across the United States when representing or advocating for a victim.  Our Common Victims' Rights resource provides a brief overview of ten of the most common victims’ rights, including a short summary and citations for each.

"How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing"

The title of this post is the title of this notable new paper now available via SSRN and authored by Paul Cassell and Edna Erez. Here is its abstract:

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature.  But relatively little is known about the content of VISs and how victims use them.  This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries.  Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs.  The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs.  Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings.

"The People Most Ignored by the Criminal-Justice System"

The title of this post is the title of this new commentary authored by Lenore Anderson in The Atlantic. I recommend the piece in full, and here is how it starts:

More than one in four Americans have been a victim of violent crime in the past decade, but few were able to get the help they deserve. Less than 10 percent of violent-crime victims get assistance from victim-services agencies, and two-thirds of all victims report never receiving mental-health or financial assistance. Many suffer further, losing their jobs due to injury, accumulating insurmountable medical debt, and assuming financial burdens left over from deceased loved ones—all while facing the health effects of the traumas they have suffered, such as chronic and debilitating stress, hypervigilance, depression, and insomnia.

In battles over U.S. crime policy, victims are rarely anyone’s priority. Advocates for a more punitive system focus on strengthening the power and reach of criminal-justice agencies, stressing strict punishments and more arrests. Reformers trying to reduce the system’s punitiveness, for their part, tend to gloss over the devastating consequences of violence as they focus on slashing incarceration. Victims are lost in this shuffle, disregarded both by the institutions meant to protect them and many of the advocates claiming to support them.

And the disregard is not felt evenly. Low-income people and people of color, as well as people with disabilities and members of the LGBTQ community, are more likely to be repeatedly hurt by violence and less likely to garner victim assistance. Young people from these demographic groups are particularly affected. The most harmed are the least helped.

Spotlighting the development of prosecutor-led resentencing movement

Law360 has this notable and lengthy new article, headlined "Minnesota Joins Prosecutor-Led Resentencing Law Movement," highlighting an interesting and important trend in enabling prosecutors to have a role in what might be called "right-sizing" sentences.  I recommend the piece in full, and here are excerpts: 

The prosecutor-led resentencing law enacted by California in 2018 was the first of its kind in the nation.  It was aimed at providing relief to youth who had been charged as adults, aging prisoners who are no longer deemed a threat to public safety, and individuals whose sentences are far out of line with more recently adopted sentencing laws and guidelines.

Similar laws were later passed in Washington, Oregon, Illinois and Louisiana in recent years.  While prisoners have only limited avenues to challenge their sentences or to seek release, prosecutor-led resentencing laws give prosecutors new discretion to identify people they no longer believe need to be in prison, and to file motions in court recommending them for a resentencing hearing.

Judges can then resentence the prisoners to a shorter term or to "time-served," in which case they are released. In making resentencing decisions, courts can consider the age of prisoners when they committed their offenses, their rehabilitation efforts, and whether they pose a risk to others if released.

Last month, Minnesota became the latest state to allow prosecutor-led resentencing. A provision in an omnibus bill signed by Gov. Tim Walz, a Democrat, on May 19 gives prosecutors the authority to defendants deemed safe for release.  Minnesota Sen. Ron Latz, a Democrat who sponsored the legislation, said the measure gave prosecutors discretion to reevaluate sentences that may be considered too harsh by today's sentencing standards, or that might simply have been the product of overzealous judges or prosecutors. "It's another tool in the toolbox to seek justice in particular cases where the prosecuting authority thinks that justice will be served by a shorter sentence," he told Law360.

The law's enactment adds momentum to a nationwide movement that seeks to bolster the role of prosecutors in reducing incarceration and curbing what advocates say are excessive prison sentences.

Supporters of the resentencing movement say some incarcerated people can be safely released and that prosecutors are uniquely positioned to initiate the process to get them out of prison. "The justice system, and the role of the prosecutor, oftentimes feels like an assembly line," said John J. Choi, the district attorney of Ramsey County, Minnesota, which includes St. Paul.  "I think the prosecutor's role should not just end once we've finished processing a case. We should always be thinking about ensuring that there is justice for those who are rehabilitated [and] who have done everything that we have asked them to do."

Like the one enacted in Minnesota, prosecutor-led resentencing laws do not compel district attorneys to reconsider people's sentences; they only provide the authority to do so.  But elected officials who oppose the laws argue the resentencing process leaves victims of crimes powerless.  They also say that giving prosecutors the power to seek resentencing leaves them facing political pressure to use it.

California Assemblymember Tom Lackey, a Republican who once served as a California Highway Patrol officer, said he voted against the prosecutor-led resentencing bill because he deemed it unfair to victims.  "This bill and the energy behind it, and those associated with it, tip the scale of justice against victims of violent crime," he said.  "The victim is totally ignored in this decision-making process.  They are not included in this discussion on how that resentencing may impact them."

But Michael A. Hestrin, the conservative district attorney of Riverside County, California, who used the prosecutor-led process to resentence Smith, said his office always engages with victims of crimes, considering their input when making decisions on resentencing.  Ultimately, however, prosecutors should be trusted in their decisions....

More than 350 people have been released in California since the law passed, according to an estimate by For The People, a nonprofit advocating for prosecutor-initiated resentencing laws nationwide that spearheaded the efforts to get the law passed in the Golden State.

With proper funding and the participation of all 58 county prosecutor's offices, the group believes some 26,000 people could be released in California.  Nationally, the prosecutor-led process led to the resentencing of more than 450 people.  Hillary Blout, a former prosecutor at the San Francisco District Attorney's Office who founded For The People and conceptualized, drafted and secured the passage of the first prosecutor-initiated resentencing law in 2018, said the breakthrough in California has inspired prosecutors elsewhere to advocate for similar policies.

For The People's national policy manager, May Lim, said the organization assisted legislators in analyzing prison population data to help them understand the potential effects of prosecutor-initiated resentencing in the state.  They focused on prisoners' ages — comparing them to how old they were when they committed their offenses — as well as the length of their sentences and how much time they had already served....

For The People also told stakeholders that part of the process of a prosecutor seeking resentencing involves engaging with victims of crimes to get their input.  Most of the time, Blout said that victims are supportive of releasing perpetrators early through resentencing after learning that they have turned their lives around while in custody. "Some victims say, 'I didn't even know this person was still incarcerated'," she said.

"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.