Posts Tagged ‘Sentencing’

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…)

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…)

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…)

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.

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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.)

Just Around the Corner

Friday, October 1st, 2010

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re (more…)

Dammit, Dillon!

Thursday, June 17th, 2010

Just a quick update.  The Supreme Court decided Dillon v. U.S. today (read the opinion here), and the decision totally sucks.  Here’s what we said about it a couple of weeks ago:

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

But noooo.

Writing for a 7-1 majority (Stevens dissented, and Alito recused himself), Justice Sotomayor said that Booker doesn’t apply here — the Guidelines are not advisory, and have to be applied as they were back in the bad old days.

This is just infuriating.  The 100-1 disparity in sentencing for crack vs. powder cocaine is fundamentally unjust.  One would think that the judiciary would just wipe it out as simply unconstitutional.  But instead, we get the Supremes saying §3582(c)(2) — the whole point of which is lenity for those sentenced under the disparate Guidelines — doesn’t allow for any lenity beyond what the Guidelines themselves permit.

Sotomayor’s legal reasoning isn’t bad.  It’s actually pretty good.  But her result is appalling.

Is Dolan a Clue to the Upcoming “Honest Services” Decisions?

Tuesday, June 15th, 2010
tammany_tiger
We’re still waiting to hear how the Supreme Court decides the trio of cases on “honest services” fraud.  In the meantime, we’re wondering if yesterday’s Dolan decision might be a harbinger of what’s to come.

In Dolan, the Court was dealing with a vague statute.  It left out a crucial statement of what ought to happen if the court missed a deadline.  They could have sent it back to Congress to specify what ought to happen.  After oral arguments, during which both the progressive Stevens and the formalist Scalia seemed inclined to do just that, we figured it was probably going to happen.  But we figured wrong. 

Instead, the Court split 5-4, not on ideological lines, but on seniority.  The five most junior justices agreed to craft their own remedy language for the statute, based on what they felt the general purpose was supposed to be.  The four more senior justices wanted Congress to amend the statute itself, and pointed out that the juniors’ interpretation actually undermined the existing language already in the statute.

We wonder if we’re going to see a similar split (and similar strange bedfellows) in the “honest services” cases of Black, Weyrach, and (more…)

Federal Sentencing: A Long Way to Go

Tuesday, May 25th, 2010

guidelines

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

“Cruel and Unusual” to Sentence Juveniles to Life without Parole

Monday, May 17th, 2010

 

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional (more…)

What Not to Say at Sentencing

Wednesday, March 10th, 2010
Monica Conyers arriving at court for sentencing

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your (more…)

Why Conservatives and Defense Lawyers Should LOVE the New Hate Crimes Law

Friday, October 30th, 2009

hate crime

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.

-=-=-=-=-

This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.

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But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.

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Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.

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Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.

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Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

Are White Collar Sentences Too Harsh Now?

Tuesday, June 30th, 2009

dilbert-wcc.pngPrison Farm

When we started law school back in ’93, we felt that white-collar criminals just weren’t punished that harshly in this country. The Dilbert strip above, from about the same time, shows that we were not alone in thinking this. It seems that this was a common perception going at least as far back as our early childhood — click on the audio button above to listen to an early ’70s National Lampoon skit called “Prison Farm.”

Like many, we felt that there was some serious injustice going on here. Socioeconomic elites were getting off lightly, even though they may have victimized far more people, far more seriously, than street-level crooks who were doing hard time. A mugger takes one person’s money, and gets a long sentence in a high-security prison. Meanwhile, a Wall Street scammer wipes out thousands of families’ savings, erases their years of labor and planning, and gets a slap on the wrist. It seemed absurd, like something from Alice in Wonderland.

And we weren’t wrong. As late as the early ’90s, we had guys like Mike Milken serving less than two years, even after the sentencing judge (Kimba Wood) had said such things as “You were willing to commit only crimes that were unlikely to be detected…. When a man of your power in the financial world… repeatedly conspires to violate, and violates, securities and tax business in order to achieve more power and wealth for himself… a significant prison term is required.”

The lesser sentences were of course due in no small part to the difficulty of spotting white-collar crime in the first place, and then proving it to a jury. Also, the law itself classified these crimes at the less-serious end of the spectrum. So you had to expect significant plea bargaining in difficult-to-prove cases, and the plea sentences were being discounted from relatively short terms in the first place.

Another important factor was the socioeconomic status of the white-collar defendants. These were not street thugs, they weren’t skeevy bottom-feeders. They were college-educated, productive members of the community, involved in charities and otherwise living “normal” lives. Their crimes weren’t violent, they were almost administrative. Victims weren’t in your face, with visceral injuries and tangible losses; they were anonymous and diffuse, with paper losses of mere money. These middle- and upper-class defendants weren’t people who belonged in prison — their loss of status, their shame, did more to rehabilitate and deter than any time behind bars. Judges felt this, and acted accordingly.

But by the time we graduated law school, this had all started to change. By then, the federal Sentencing Guidelines had gone into effect. The Guidelines had three major effects on federal cases. First, they increased the penalties for white-collar crimes, especially where the dollar amounts were high and there were many victims. Second, judges lost most of their discretion to sentence lightly based on the defendant’s socioeconomic status, and were not all that willing to put such reasoning on the record. Third, the Guidelines took away much of the plea-bargaining leeway, only permitting two or three levels of departure for taking a plea.

The biggest change happened when the tech bubble burst in 2000. In the late ’90s, Americans became investors like never before, with even cops and construction workers becoming day traders at home. Tons of our money went into IRAs, brokerage accounts and 401(k)s. And then the bubble burst, the markets dipped, and the average Joe saw his investments tank. As always happens, this revealed financial frauds that had escaped unnoticed in the up market. The middle class was outraged, and began to demand severe penalties for the fraudsters.

Prosecutors and judges got the message, and the exposed fraudsters got slammed. WorldCom’s Bernie Ebbers got 25 years. Enron’s Jeff Skilling got 24 years and 4 months (Andy Fastow, reported to be the primary Enron fraudster, cooperated and got six years). Adelphia’s John Rigas got 15 years. In state court, Tyco’s Dennis Kozlowski got 8-1/3 to 25 years.

This pattern repeated itself in the recent economic downturn. After several boom years, a credit crunch and market dip exposed many white-collar offenses (most of which we are told are still in the pre-indictment phase). Voters had lost a lot, and their voices were heard.

So now we get yesterday’s 150-year sentence of Bernie Madoff. As we’ve explained before, we’ve avoided writing about the Madoff case, because everyone else is already talking about it, and we don’t feel like we have anything new to add.

But this 150-year sentence… we’re going to go against the grain here and wonder out loud if perhaps it’s too harsh.

* * * * *

Whoa. How can we say that, when we just got done saying how unjust it seemed when white-collar types were getting off lightly? Isn’t this exactly what we wanted?

No, it isn’t. We wanted the punishment to fit the crime, and to fit the policies underlying criminal punishment. This sentence doesn’t do that.

For one thing, Madoff took a plea to avoid trial. And yet he still got the worst sentence that he could have gotten had a jury convicted him. What was the point of taking a plea? This sends a strong message to white-collar defendants now: you might as well just go to trial, because you’re going to get the same sentence if you lose — and juries being what they are, you might just win. The system could see a lot fewer pleas — pleas it relies on to keep working.

For another thing, Madoff got a bunch of consecutive sentences. Normally, even after trial, they’d mostly run concurrently. He’d have gotten about 30 years — still a life sentence for a 71-year-old guy. Judge Chin said he did so for “symbolic” reasons, to make the victims feel better. But is that a valid purpose of sentencing?

Of course it isn’t. The purpose of sentencing is not to make victims feel better, or give them closure, or anything like that. The criminal justice system does not serve the function of making victims whole. That’s the job of the civil courts. A criminal court can order restitution as a condition of sentencing, but that’s about it. The purpose of sentencing is not reparation, but punishment. Punishment is supposed to deter future crimes, retaliate against the offender, rehabilitate the offender so he doesn’t do it again, or remove a threat to society.

But maybe Judge Chin is on to something here. Perception is important. Few of the purposes of punishment work unless there is some perception. Deterrence doesn’t work, unless people get the impression that crimes are probably going to be punished, and that they will probably be punished harshly enough to make them not worth your while. (This raises an interesting thought experiment — would the criminal justice system work just as well if we could give the public the impression that crimes are punished, without actually incurring the expense and hassle of, you know, punishing them? Discuss.)

Another problem we have with this sentence is that his scam wasn’t directed at Joe Retail out there. It was a secretive investment fund that did not disclose what it was doing, as it would have had to if it had been sold to the average person. It could be secretive because it was sold to sophisticated investors. These sophisticated investors saw an unusually high and steady rate of return, and instead of investigating to see what was going on, simply told Madoff to cut them in.

Sophisticated investors have a duty to check these things out. Are we blaming the victims here? Yeah, a little. They had the size or experience to know that something that sounds too good to be true probably isn’t. And yet they shoved their money into the fund anyway. And for those who shoved all of their money into the fund, ignoring basic investment principles of diversification, they were victimizing themselves just as much as if they’d invested in Pets.com. And for those who invested beyond their discretionary income, but actually sent Madoff the money they needed to live on, that’s the epitome of dumb. These weren’t blue-collar workers, these were investors with enough dough to get in the game, and enough savvy to have known better. The law just doesn’t need to afford them the same protections as ordinary folks.

So the law doesn’t need to impose punishments harsher than those imposed on victimizers of ordinary folks.

What is needed is parity. Yes, white-collar sentences should reflect the seriousness of the harm done, just as sentences for violent crimes and street crimes need to be proportionate to the offense. A white-collar offense that causes as much harm as a back-alley mugging probably deserves a similar punishment, all else being equal. Maybe a little less, actually, as there is more likelihood of deterrence or rehabilitation. White-collar crimes are usually calculated, they aren’t crimes of the moment, and offenders usually have the smarts to take punishment into account. And white-collar offenders aren’t as likely to re-offend once they’ve gone through the system. So sure, maybe they don’t need quite as much punishment. But it ought to be about the same.

Giving 150 years here, though, is not at all proportionate. Murderers don’t get that much. Kidnappers don’t get that much. And taking someone’s life or liberty is just not the same as taking someone’s property. White-collar victims only lose money. It’s only money. It’s a big deal, but it should not be punished more severely than crimes that are obviously more severe.

The pendulum has swung too far.

Gun Goes Off By Accident, None Hurt? You Get 10 Years.

Wednesday, April 29th, 2009

 

18 U. S. C. §924(c)(1)(A) makes it a federal crime to have a gun on you while committing certain violent or drug-related crimes. There’s a mandatory 5-year minimum sentence just for carrying the gun. If you brandish the gun, it goes up to 7 years. If the gun goes off, it goes up to 10 years.

That’s what happened to Christopher Michael Dean. He was robbing a bank, and had a gun in his hand. He probably had his finger on the trigger like an idiot, because when he reached over a teller to grab money, the gun went off. Nobody got hurt, and it was clearly unintentional. Still, the gun went off, and he got the 10 year minimum for it.

In today’s Supreme Court decision in Dean v. United States, the Court was asked to find that the enhanced 10-year minimum requires some mens rea. Some intent or mental state demonstrating culpability. In a 7-2 decision, however, the Court found that Congress did not impose any such requirement. The majority ruled that this is a crime of strict liability, and so it doesn’t matter whether the defendant meant it to happen or not.

The Court didn’t have a lot of room here. Congress didn’t put anything about mens rea in the statute. It just says you automatically get 10 years “if the firearm is discharged.” It doesn’t say “negligently,” or “knowingly” or “intentionally” or anything like that. It’s written in the passive voice, and nothing else in the statute suggests that Congress meant there to be a mental-state element of this crime.

Dean argued that the law has a progression of ever-harsher penalties. And usually in the law, penalties are increased because of a more culpable mental state. So even though Congress didn’t say it in so many words, they must have intended this 10-year minimum to apply to intentional shootings, as opposed to accidental discharges.

But of course mental state is not the only element that increases culpability. Extra facts can do so as well. Intentionally hitting someone and bruising them is one thing, and intentionally hitting them and killing them is another. Here, bringing a gun to a bank robbery is a bad thing, because there’s a chance it is going to be used, and someone could get hurt. Taking the gun out and waving it around during the heist only increases the chances that someone could get hurt. And even a random shot increases the odds even more. So it makes sense that Congress increased the penalties based on the increased risk to others.

Writing for the majority, Roberts acknowledged that “it is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, strict liability crimes for unintentional conduct certainly do exist. Statutory rape is the most commonly-cited example. The law doesn’t care whether a man knew his sexual partner was underage, or even if he had every reason to believe that she wasn’t. His mental state does not enter into it, and he goes to jail for a crime he never intended, and never realized he was committing. The law takes the act so seriously that it is deemed indefensible, and so it doesn’t care whether it was committed by mistake. Although they are uncommon, there are plenty of strict liability crimes.

The reason why strict liability crimes are uncommon is alluded to in Dean’s case. When we punish a crime, what we’re really punishing is the offender’s mental state. If someone accidentally trips and stumbles into you, society doesn’t want to punish him. What for? There’s nothing to deter, nothing to retaliate against, nothing to rehabilitate — there was no wrongdoing. But if someone had a duty to be careful with his car, but wasn’t, and his negligence hurt you, then he’s going to be punished a little bit. And if he drove dangerously, with reckless disregard of the danger to others, then he’s going to be punished even more. And if he intentionally ran you over, backed up, and did it again, then he’s going to get the most punishment. Even if the injuries are the same in every case, the more wrongful the offender’s mental state, the more culpable he is, and the more punishment he’s going to get. And if there was no mental state, then there’s really nothing to punish.

The law increases punishment for increased culpability. Increased mens rea certainly means increased culpability.

But that’s not the only factor. In addition to the mens rea element, you have the offender’s actions to consider, as well as the harm that resulted. Increasingly risky actions, with the same mens rea, are increasingly culpable. And increasingly harmful results, with no change in mens rea or actus reus, are also increasingly culpable. Dean’s argument didn’t really seem to grasp this concept.

In his dissent, Justice Stevens made the same mistake that Dean did. Stevens argued that, because of the escalating sentences, Congress must have “intended to provide escalating sentences for increasingly culpable conduct,” and therefore “the discharge provision… applies only to intentional discharges.”

Time for Stevens to bone up on his logic. That syllogism is the same as saying “All men have noses. That person has a nose. Therefore, that person is a man.” It ignores the fact that women also have noses. Here, Stevens ignores the fact that mental state is not the only thing that enhances culpability.

Stevens also would have applied the common-law presumption of mens rea — that if something has been criminalized, there is presumed to be some mental-state element of the crime. Legislatures do often leave out the mens rea element from time to time, and the courts fill it in for them. But that’s only when the statute didn’t otherwise provide a basis for the enhanced culpability. Here, however, Congress did provide a basis for enhanced culpability, in the increased risk to others posed by the actions, regardless of whether those actions were intentional.

Breyer also dissented, based on the Rule of Lenity. He felt that the word “discharge” should be interpreted as meaning “firing,” which implies active use of the weapon, and therefore implies some kind of intent. But he conceded that the majority opinion had equally strong arguments for reading this as a strict liability crime. Given these competing interpretations, the Rule of Lenity would have the Court err on the side of the defendant.

However, just because a contrary position can be articulated, that does not mean that interpretation is necessarily ambiguous. The Rule of Lenity is only applicable when the statute is so ambiguous that it didn’t give fair warning of what could happen to you if you violated it. Here, according to the majority, there was no such ambiguity. The statute simply didn’t contain a mens rea element, and it didn’t imply one, and that fact is not grievously uncertain, and so the Rule of Lenity doesn’t apply.

So don’t rob banks. But if you do, don’t bring a gun along. But if you do, don’t wave it around. But if you do, keep your finger off the trigger. Because if it goes off by accident, you’re in big trouble.

Prisons Crowded? Don’t Build More, Says Court. Just Release the Inmates.

Tuesday, February 10th, 2009

overcrowded.png

A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.