Monday morning

The NY Times explains how discovery and sentencing are broken in the criminal justice system. But this is old news, no?

On Brady:

The current Brady rule requires prosecutors to make two judgments: Is evidence favorable to the defendant? If so, is it likely to affect a decision about guilt or punishment? Too often, prosecutors avoid disclosing evidence by answering no to the second question.

In ruling on the Smith case, the court should refine the Brady rule by eliminating the second question and requiring that prosecutors hand over all favorable evidence. Let a judge or jury weigh its importance.

On Sentencing:

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

Justice Alito doesn't like the First Amendment

He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.

Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.

In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."

In other news, give your thoughts on Magistrate Judge Hopkins.

If a tree falls in a forest and no one is around to hear it, does it make a sound?

Well maybe, if that tree is DOJ... Here's DOJ saying the fraud guidelines need to be updated (from Main Justice). Federal judges were also piping in, with one calling the loss guidelines "a crock."

I'm sure the DOJ officials at this conference weren't staying in the forest though; they were probably staying at the Ritz. Kosher Meatball Blog (I still don't get the name) has more on this OIG report entitled "A Review of U.S. Attorney Travel that Exceeded the Government Lodging Rate." It's not pretty.

Why aren't more judges speaking out against the guidelines?

Here's an article about Judge John Gleeson's recent response to DOJ's criticism of fraud sentences:

A federal judge in Brooklyn has rebutted the criticism by a top Department of Justice official that many federal judges have "lost" their "moorings to the sentencing guidelines" in major fraud cases.
The attack on a "regime" of judges who impose fraud sentences "inconsistently and without regard to the federal sentencing guidelines" appeared in a letter sent in June by Jonathan J. Wroblewski, the director of the Office of Policy and Legislation to the chief of the U.S. Sentencing Commission, Judge William K. Sessions III.
Last week, Eastern District Judge John Gleeson responded to Wroblewski's implication that, as Gleeson put it, fraud sentences "are inexplicably and unjustifiably all over the lot."
In a 16-page "statement of reasons" for a fraud sentence, Gleeson wrote that the discrepancies between guideline sentences and actual sentences is not evidence of the unmooring of judges, but rather indicative of the difficulty of capturing the nuances of a complex case in a list of guidelines.
The 539-page Sentencing Guidelines Manual is only one of eight factors that judges are statutorily required to consider at sentencing, Gleeson added.
He also noted that if judges had truly become unmoored from the guidelines, then prosecutors would appeal sentences more frequently -- only 18 of the 1,711 below-range fraud sentences issued last year were appealed.
"[I]n determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed 'unacceptable' outcomes the Department complains about," Gleeson wrote in United States v. Ovid, 09-CR-216. "I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution."

Gleeson is no push over. He is a former federal prosecutor and the prosecutor who put away John Gotti. He's tough but he's known as fair and extremely smart. I'm hoping that, like Gleeson and others are doing, more and more judges will start to stand up to these draconian guidelines that have no relationship to the goals of sentencing.

Hat tip -- Sentencing Law and Policy

Federal Sentencing Guidelines under attack by...

... Lindsay Lohan. 

She tweeted the following:

It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that...., "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." this was taken from an article by Erik Luna.. "November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines. But there were no celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the U.S. Sentencing Commission... Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted system that saps moral judgment through its mechanical rules."

Speaking of Federal Sentencing Guidelines -- Judge Cohn sentenced former Miramar Commissioner Fitzroy Salesman today to 51 months' imprisonment.  (Here's the Sun-Sentinel article).  The government had asked for 8-10 years.  In Judge Cohn's last big sentencing -- Scott Rothstein -- he went over the government's recommendation...  This time, he explained, Salesman's sentence should be in line with the other politicians caught in the scheme -- former School Board member Beverly Gallagher and former County Commissioner Josephus Eggelletion.  Sounds right. 

"You make this sound like a fraud case. This isn't Bernie Madoff."

That was Judge Kenneth Ryskamp last week on the Lin Gosman case, in which the judge sentenced Gosman to probation even though the guidelines called for substantial time in prison. I missed the case when it happened, so thanks to my peeps for sending it along. It's an interesting fact pattern. From the Palm Beach Daily News article:

Assistant U.S. Attorney Carolyn Bell, however, said Lin Gosman's admitted actions — hiding at least $400,000 in shared assets in storage buildings and receiving a $350,000 second mortgage on a Jupiter house she owns — without disclosing to the mortgage holder the $66 million bankruptcy judgment against her husband were "secretive, deliberate and dishonest. It was criminal."
"This is at the top of the heap," Bell said. "This is the type of bankruptcy fraud where everyone goes 'Oh, my goodness.' This conduct, if we don't address it, the bankruptcy system doesn't work."
Bell recounted Lin Gosman's post-indictment trips to Hong Kong, Dubai, Morocco, Paris and other spots — while allegedly conducting research for a children's book — as evidence she was spending funds that should have been reserved for her husband's creditors.
In addition, Gosman admitted filing a false tax return in 2004 and failing to file tax returns since 2005.
Bell said Gosman tried to hide $3.5 million in assets from the IRS. Gosman has already paid $350,000 in back taxes, Ryskamp said.

But the judge didn't agree with the government that Gosman should get time:

Gosman, 60, teared up and looked at her husband, Abe, as the judge pronounced the sentence.
"I'm so happy," she told him after giving him a kiss. "Why couldn't I have found someone like (Ryskamp) a long time ago?"
She could have received nearly four years in prison, according to sentencing guidelines, but the judge used his discretion and deviated from the guidelines.
Ryskamp cited Gosman's absence of a prior criminal record, her contributions of time and money to many charities and the deterioration of her physical and psychological health. Before she lied about her personal assets, Lin Gosman was a "pillar of society," he said.
The judge admonished the government's vigorous prosecution of the case.
"The U.S. Attorney's Office is hailing this like it's the crime of the century," Ryskamp said near the start of the sentencing hearing. "You make this sound like a fraud case. This isn't Bernie Madoff."
Ryskamp called the case "bizarre in many respects," adding that he has "never seen such an aggressive prosecution" of this type of case in his 23 years on the bench. Ryskamp also said he's never seen such "a lack of objectivity" on the part of the government in pursuit of a case.

Here are some more quotes from the case.

Are Sentences for Possession of Child Porn Too High?

Yes, according to some district judges testifying before the Sentencing Commission. From the National Law Journal:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.
Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.
"This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."
In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years.
***
"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.
Rosen emphasized that he doesn't condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.
***
7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence.
"One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

What do you all think?

Written Testimony

For those that are interested, here is my written testimony to the Sentencing Commission.

Sentencing Commission testimony

I had the pleasure today to testify before the U.S. Sentencing Commission regarding the 25 year anniversary of the Sentencing Reform Act. Here's the agenda of speakers at the regional hearing, and here's an article from the local paper previewing the hearings.

It was pretty interesting. I provided both written testimony (which I will post when I'm back in Miami tonight) and oral testimony, after which I (and the other panelists) answered their questions.

I am in the Atlanta airport now trying to get home, but I will post more about the day later.

"If there is a verdict for her and she is ordered to be released, how can the verdict be changed so suddenly!!!!!!!!!"

That was the defendant's mom after Judge Cohn sentenced Shahrazad Mir Gholikhan to 29 months a week after sentencing her to credit time served. I've tried not to blog about the case because I was involved for a brief time early on in the litigation. Here is the intro from Vanessa Blum's article:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family.The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months.Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."


Gholikhan's lawyer Bill Barzee had this to say:

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran."I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

And a sentencing professor commented:

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider."I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

It's a valid point. If a sentence of credit time served is reasonable, how can a sentence of 29 months be reasonable the next day -- especially when the prosecutor had agreed to credit time served. If the situation was reversed -- and the defendant didn't like her sentence -- would a judge allow her to come back to court?

Huge sentencing day...

Criminal law practitioners have quite a bit of reading today as the Supreme Court decided two mammoth cases -- Gall v. United States and Kimbrough v. United States. In a nutshell, the cases are huge victories for district judges, criminal defense lawyers and their clients. The decisions reaffirm that district judges have wide discretion in sentencing defendants and that the guidelines are really just advisory. Judges are free to disagree with them (as the judge did in Kimbrough with the 100-1 crack disparity) and appellate courts are to defer to the district courts unless they abuse their discretion in sentencing. It will be interesting to see how district judges use their discretion now that the Supreme Court has said it really really means it.

In other sentencing news, Michael Vick got 23 months. Almost two years for a first-time offender with no prior history... Thoughts?

For all your sentencing news, the best place to go is www.sentencing.typepad.com and for the Supreme Court news, go to www.scotusblog.com

Fred Grimm on the Sentencing Guidelines

I very rarely agree with Fred Grimm, but today he criticizes the Sentencing Guidelines, and I couldn't agree more.

Grimm says:

A drama of Shakespearean magnitude was supposed to unfold in a federal courtroom, but it was reduced to numbers.

Reporters, come to learn the fate of the fallen Broward sheriff, sat mystified as the judge and lawyers abandoned English and broke into a secret numerical language. They added. They subtracted. They plugged varying values into a mathematical formula to arrive at hypothetical levels.

Of course, if one starts at Level 12 and concedes a two-level enhancer and compares that to a Level 16 with a downward departure worth three levels, the outcome still fits the 12-to-24-month range. Or is it 18-to-24?

It was as if instead of attending a sentencing hearing at the federal courthouse in Fort Lauderdale, I had stumbled into a math class. The professor, U.S. District Judge William Dimitrouleas, and prosecutor Matt Axelrod crunched the numbers for 30 minutes.

For those of you who thought that the guidelines were a thing of the past, you couldn't be more wrong. Judges still must consider the guidelines and therefore must engage in this ritual of adding and subtracting points. More from Grimm:

And Ken Jenne, once the most powerful politician in Broward County, sat impassively as lawyers debated what numerical values to assign aspects of his life. Criminal transgressions minus good works. Either add or subtract values for acceptance of responsibility, the money he filched, his remorse, his reluctance to admit guilt. Figure years of public service but take an upward departure for betraying the public trust.

It amounted to a downward departure from reality. As if a judge only needed a black robe and hand calculator.

Thoughts on Scooter

President Bush's commutation of Scooter isn't that surprising. But his comments about why he commuted the sentence are:

[C]ritics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury....

Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison....

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.

I agree with the President on these points. Defendants shouldn't be punished for conduct which they have not agreed to or which hasn't been proven to a jury beyond a reasonable doubt. First time non-violent offenders in many cases should not receive jail time. There are alternatives to incarceration that work in many many cases and will work for Scooter Libby. We don't have to worry that he will be reoffending.

The problem with the President's reasoning is that the Sentencing Guidelines prescribe this result and his administration continues to push these guidelines in every case, no matter the individual circumstances. This, of course, is wrong -- not just in Scooter's case, but in a great deal of cases. I hope sentencing judges and prosecutors look at the President's comments and see that the Guidelines need not be applied mechanistically in every case.