Archive for the ‘Sentencing’ Category

Deterrence has nothing to do with it.

Thursday, December 20th, 2012

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers (more…)

Answering Your Most Burning Questions

Friday, December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be (more…)

More on Brain Scans – Can They Tell Whether You’ll Get Off Lightly?

Tuesday, April 3rd, 2012

With a hat tip to our Uncle Ralph, here’s a link to yet another fMRI study bearing on criminal law. Makiko Yamada and colleagues have published in Nature Communications their study “Neural Circuits in the Brain that are Activated when Mitigating Criminal Sentences.”

The researchers asked people to review the facts underlying 32 hypothetical murder convictions. Half of them were designed to elicit sympathy for the convicted murderer, the other half to elicit no sympathy. The test subjects were told that each murderer had been given a 20-year sentence, and they were asked to modify the sentences. Unlike previous studies, there was no question as to guilt or innocence — the only issue was whether the sentence should be more or less than 20 years under the circumstances. A functional MRI scanned their brains to see what neurons were firing as they made their decisions.

The question intrigued the researchers because such decisions are not only high-stakes, but also because one must first have an emotional reaction, and then convert it into a cold quantification — the number of years of the sentence.

After crunching all the numbers, there appeared to be a strong correlation between activity in the portions of the brain highlighted in the image above, and reduced sentences.

To their credit, the researchers really don’t conclude any more than that — that certain brain areas seem to be involved in decisionmaking influenced by sympathy. And someone who’s more likely to be sympathetic is also more likely to have more activity in those neurons.

But they do note that this raises other questions — such as to what extent (more…)

Better Criminal Lawyering through Smart Risk-Taking

Wednesday, March 28th, 2012

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably (more…)

When Incarceration Shot Up and Crime Plummeted

Tuesday, January 24th, 2012

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

-=-=-=-=-

Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was (more…)

“More Law?” – Pure Sociology Gets It Wrong

Monday, November 28th, 2011

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the (more…)

A Neat Primer on Neuroscience and Criminal Law

Monday, November 7th, 2011

 

One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.

Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.

One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?

Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.

We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.

Who Are the Real Victims of Insider Trading?

Thursday, August 18th, 2011

 

Last week, the prosecution and the defense filed their sentencing memoranda in the Rajaratnam case.  Raj was convicted of 14 counts in all — 9 counts of securities fraud, and 5 conspiracy counts.  So what do the parties think that’s worth?  The feds asked Judge Holwell to sentence Raj in the range of 19.5 to 24.5 years.  The defense didn’t make a specific request, just said it ought to be “well below” what the feds want.

So 20 years, huh?  Wow, he must have been an awful bad guy.  Must have hurt a whole lot of people, right?

After all, a mugger in a dark alley only takes one person’s wallet.  A “white-collar criminal” can steal from thousands of people — and takes not just their wallet, but their life savings!  Right?

Well, hang on.  Did Raj actually steal from anyone?  How many investors did he really harm?  And did any of them really lose enough money to warrant locking someone up till we all have flying cars and jetpacks?

Judging from the feds’ sentencing memo, you bet.  Just look at this, from the introduction:

Raj Rajaratnam’s criminal conduct was brazen, arrogant, harmful, and pervasive.  He corrupted old friends.  He corrupted subordinates.  He corrupted entire markets.  Day after day, month after month, year after year, Rajaratnam operated as a billion-dollar force of deception and corruption on Wall Street.

Wow, that sounds awful.  So the victims are… who again?

But wait, there’s more:

Rajaratnam repeatedly leveraged the power of money and his position as the head of a 7-billion dollar hedge fund to induce friends, employees, and associates to participate in his criminal activities.  Although already rich, Rajaratnam did this to drive up his personal wealth through profitable trading in his hedge fund.  He did it to make sure that investors did not pull their money out of Galleon and to attract new money to his fund.  And he did it because of his egomaniacal drive to triumph over his competitors on Wall Street.

Again, wow.  (The feds sure like their adjectives, don’t they?  Comes off a tad over-the-top, if not insulting to the intelligence.)  So he was trying to increase his wealth, gotcha.  But at whose expense?  Guess we have to read more:

That was what he cared about: money and success.  What he did not care about, at all, was the extensive harm he left in his wake: harm to the capital markets; harm to the average, ordinary investors who played by the rules; harm to the companies whose secret information was misappropriated; and harm to the lives of those he corrupted.

Well, that sounds a little more like it… but again, who was harmed, and how?

Although particular investors on the other side of Rajaratnam’s illegal trades are not easily identifiable, there should be no question that ordinary investors paid the price for Rajaratnam’s crimes and that public companies were harmed by Rajaratnam’s repeated theft of corporate secrets.

Oh for crying out loud.  Are they joking?  Stripped of its demagogical rhetoric, this translates to “We have not identified any actual victims.  But we shouldn’t have to.  It’s obvious that lots of people must have been harmed, even if we don’t know who they were.”

If they don’t know who — or even whether — anyone was actually harmed here, how in blazes do the feds justify asking for 19.5 to 24.5 years of imprisonment?  Here’s how:

[The feds want that much time because they feel it is] proportionate to the historic nature of his crimes.  He is arguably the most egregious violator of the laws against insider trading ever to be caught.  He is the modern face of illegal insider trading.

That’s it.  That’s all.  “Because this is the first time we’ve ever caught someone so red-handed,” and “because this case got so much press.”  Those are the sole reasons why they are looking to put this guy away until he dies of old age.

Really?

-=-=-=-=-

For the record, we’re predicting (more…)

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Time to Lose the Guidelines?

Wednesday, June 29th, 2011

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure (more…)

Prison: A Problem, Not a Paradox. Is It Solvable?

Tuesday, June 14th, 2011

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

-=-=-=-=-

The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be (more…)

Stop the Presses — Holder Does Something Right

Wednesday, June 1st, 2011

 

We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  “As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.

Rethinking Recidivism

Friday, April 29th, 2011

 

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

-=-=-=-=-

So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who (more…)

Is it a victory if you have to fight the battle all over again?

Tuesday, April 26th, 2011

 

Let this be a lesson to any young appellate lawyers who might be reading this:  Focus on the result, not on the argument.

We’re wading through the various slip opinions and decisions that came down during March and April while we were on trial, and the Supreme Court decision in Pepper v. United States just floored us.  In a nutshell, Pepper got a huge downward departure at sentencing, for providing substantial assistance, getting 24 months plus five years of supervised release.  After Pepper had served his time and was now out on supervised release, the Eighth Circuit said his sentence was improper, and remanded for new sentencing.  The original departure was about 75% off the guideline.  At resentencing, the judge took 40% off, but then dropped it down to 24 months again based on extensive evidence that Pepper had gotten his life back on track in major ways.  The government appealed again.

On the second appeal, the Eighth Circuit reversed again, saying that post-sentencing facts could not be considered in resentencing.  Only facts known at the time of the original sentence could be applied.  After a Supreme Court sojourn on Gall issues, the Circuit remanded for re-resentencing before a new judge.  At this new resentencing, the new judge gave him only 20% off, or 65 months plus 12 months of supervised release.

Pepper appealed, of course, trying to get that original 40% departure.  So it went to the Supreme Court again.

The Supremes held, quite correctly, that of course post-sentencing facts may be considered at a resentencing.  It is absurd to argue otherwise.  The prosecution would be allowed to present evidence of subsequent failings by the defendant, so why shouldn’t the defendant be allowed to present evidence of his rehabilitation?

So far, so good.  But did that mean that Pepper was entitled to that original 40% reduction?  No.  Because “in his merits briefs to this Court, Pepper does not challenge the scope or validity of the Court of Appeals’ mandate ordering de novo resentencing, and thus has abandoned any argument that the mandate itself restricted the District Court from imposing a different substantial assistance departure.”  And the “law of the case” doctrine doesn’t apply in a de novo proceeding when the entire sentence had been set aside, which is what happened here.

This is such a forehead-smacking moment.

The Supremes are all but saying that Pepper should have said the Eighth Circuit didn’t have the authority to set aside the entire sentence and order a de novo resentencing.  Had the argument been made, the Court might have held that the Circuit could only have remanded for resentencing applying specific rules, but couldn’t order a complete do-over in front of a new judge.

But Pepper didn’t ask for that.

So Pepper didn’t get it.

Instead, all he gets now is a re-resentencing that is permitted to take into account his post-sentencing rehabilitation.  Which may or may not get him the lighter sentence he originally sought.  If appellate counsel had kept their eyes on the goal of canceling the Circuit’s de novo order, they would have argued for it.  And they might have gotten it.  Instead, they focused on making a “law of the case” argument that, while clever, made little sense if the de novo thing was still there.

Ergh.

(PS — The concurring opinions are worthwhile reading, as they lay out some of the ongoing problems in the post-Booker world.  Thomas’s dissent, however, goes too far.  He would abandon the individual justice of sentencing where judges have discretion, and would return to the one-size-fits-all injustice of the Guidelines as Mandates.  Thank goodness he’s a minority of one in this case.)

Registering the Wrong People

Monday, January 3rd, 2011

 

Sex offender registries aren’t necessarily a bad idea.

For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars.  It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out.  That’s not how sex drives work.  So they often reoffend.  To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do.  They’re basically on extremely limited parole for the rest of their lives.

Their lives are basically over.  The stigma is the worst our society can dish out.  There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life.  The best that can be said for such an existence is that it’s not prison.

Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.

But are these people really the ones who get registered?

Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend.  A jerk can be registered for grabbing someone’s ass.  Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender.  A harmless loser will find himself on the registry for calling up a call girl.  There really isn’t any rhyme or reason to it any more.

These are not things that have anything to do with the policy underlying sex offender registries.  There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape.  It’s an (more…)