Recently in Sentencing Category

The LA Times has this unsurprising editorial about the California Assembly's recent defeat of SB399, or in their words, the Assembly's refusal "to lead California out of the Dark Ages by banning sentences of life without the possibility of parole for juveniles."  (Read Kent's previous posts about the bill here, here, and here.)  Characterizing the bill as "extremely modest," the article implores Senator Yee to push again for such a law in the future in the hopes that "[a]t some point, the Assembly with find the courage to do the just thing."  The article implies that LWOP for juveniles serves neither of the two functions of incarceration - punishment and protection of the public - based on general studies of juvenile delinquency patterns.  Notably, the article omits the fact, noted in Sacramento District Attorney Jan Scully's press release, that LWOP is only available to juvenile offenders ages 16 to 18, convicted of first degree murder with special circumstances - not, as the article seems to suggest, to "children ... capable of reform" who find themselves in the wrong place at the wrong time. 

Tim Redmond at the San Francisco Bay Guardian is very upset with California Assemblywoman Fiona Ma for voting against the bill to effectively abolish life without parole for the very worst 17-year-old murderers.  We have a different take, of course.  We will put aside our disagreements with Ms. Ma on other issues and give her a Profile in Courage award on this one.  The pressure from the soft-on-crime crowd was intense, and the major newspapers had lined up, repeating Senator Yee's vignettes without verification.  Here is the statement from Ms. Ma's office, as quoted in the SFBG story:

I did not come to my decision on SB 399 easily - it's legislation that I have carefully reviewed and considered for months. While I acknowledge that some juveniles in the correctional system may have the capacity to be rehabilitated after decades of being incarcerated, I feel that we cannot reset a defendant's clock 25 years later expecting a victim's family will reset their hearts.

The Supreme Court of North Carolina today rejected a claim brought by dozens of North Carolina lifers that their life sentences must be reduced by good time credits.  See News 14 Carolina's story here.

The claims were filed by NC inmates who were sentenced to life terms between April 1974 and June 1978.  At that time, the relevant state statute defined a "sentence of life imprisonment" to mean a term of 80 years.  With earned good time and merit credits, the inmates claimed that they had completed their sentences and were entitled to immediate release.  The Department of Corrections countered that under their policy, credits earned by lifers was not for the purpose of reducing the inmate's sentence, but rather to calculate a release date in the event the sentence is commuted.  Alfred Jones - a convicted murderer originally sentenced to death and one of the complaining inmates - successfully challenged this policy in the state trial court.  After calculating his credits, the court ordered his immediate release.

Yesterday, the California Assembly voted down SB 399, Senator Leland Yee's attempt to create a possibility of parole for all 17-year-old murderers, regardless of how heinous the crime. The vote was 34-38, with 41 needed for passage. All the Republicans and 9 Democrats voted no. Another 6 Democrats abstained, which in California is effectively the same as voting no.

This was a hard fought battle, with victims' groups and prosecutors fighting uphill and with misleading and misinformed editorials in all the leading newspapers of the state.  Congratulations to those who worked so hard to defeat this ill-advised measure.

NOVJL's press release is quoted after the jump.

Looks like today is the decision day on California Senator Leland Yee's latest attempt to prevent the families of persons murdered by 17-year-olds from ever resting completely sure that the perpetrator will not be released.  Sacramento TV station KCRA has this story.

Marisa Lagos has this post on the SF Chron Politics Blog. As reported earlier, Senator Leland Yee has made some amendments to his SB 399 to create possibilities of parole for 16- and 17-year-old murderers sentenced to life without parole.  "The amendments were apparently aimed at garnering enough support for the bill, which is strongly opposed by some victims rights groups and prosecutors (including GOP Attorney General candidate Steve Cooley, the District Attorney for Los Angeles County)."

CJLF sent this letter to members of the Assembly today.  The psychological studies referred to in the letter are described in our brief in Graham v. Florida.

Daniel Horowitz of NOVJL has this letter to Assemblyman Lieu with this attachment describing Mario Vitale's statement at the sentencing of his mother's killer.

A year ago today, Scotland released a Libyan operative, Abdel Baset Al-Megrahi, the only person convicted in the Lockerbie airliner bombing.  This was done because the government didn't want to be, you know, "inhumane."  The convict, so we were told, was dying of cancer and had but three months to live.

Not exactly.  He's alive today, having a good 'ole time back home.  Lan' sakes alive!  With a straight face, AP reports:

EDINBURGH, Scotland (AP) -- Britain's government says it has warned Libya that any celebration of Friday's anniversary of the release from jail of the Lockerbie bomber would be deeply offensive to the families of the mainly U.S. victims of the attack.

Abdel Baset Al-Megrahi, the only person convicted in connection with the 1988 bombing of Pan Am Flight 103 above Lockerbie, Scotland, was ordered in 2001 to serve 27 years in jail, but freed on Aug. 20 of last year on compassionate grounds, as he is suffering from prostate cancer.  

Now that'll set 'em straight.  A national party occasioned by scamming a bunch of willing fools "would be deeply offensive," so those Libyans had really better not do it. Moral of story:  When the apologists for killers, abroad or at home, start yammering about "compassion," what they really aim to do is celebrate your stupidity.

California Senate Bill 399 by Senator Leland Yee is intended to create the possibility of parole for those very few 16- and 17-year-old murderers that the trial judge decides at sentencing should never be paroled. (Under current law, the judge always has the discretion to choose a 25-to-life sentence instead.)  The bill passed the Senate, but Yee apparently does not have the votes in the Assembly.  We have received reports that he intends to further amend to bill to scrape up the last few votes. 

No matter what amendments he puts in, the bill remains unnecessary.  Between the trial judge's discretion at sentencing and the governor's commutation power, current law has all the flexibility needed.

The  National Organization of Victims of Juvenile Lifers has this press release:

Sacramento - SB 399, which could free teen killers in California sentenced to life as adults because of the extraordinarily heinous nature of their crimes, is before the California Assembly currently.  Victims' families of these crimes and legal experts question the validity of some of the facts of the cases being used in support of SB 399 by Senator Leland Yee and other advocates, such as Human Rights Watch, that interviewed and published the offenders' versions of the cases which sometimes stood in direct contradiction to the facts proven in court.

NOVJL President and famed attorney Daniel Horowitz today said "The stories that Human Rights Watch uses are produced by the criminals or their supporters.  They are not documented with court files or in any other way.  One we know about in Oakland is fraudulent.  The legal stories are impossible in many cases as they describe procedures that do not exist or things that cannot happen in California's criminal justice system. The accounts are frightening because these lying, unremorseful killers are manipulating their way out of life sentences."

California State Senator Leland Yee has long been on a crusade to exempt from life-without-parole all murderers short of their 18th birthday at the time of crime, even if only a day and regardless of how heinous or numerous their crimes. Now he is resorting to outright misrepresentation to achieve this goal.

Yesterday, the Sacramento Bee had this story by Kim Minugh on Sacto DA Jan Scully's opposition to Yee's bill, SB 399, which is up for a vote in the Assembly.

To underscore her point, Scully cited two recent cases in which juvenile offenders were tried as adults and convicted of first-degree murder: Jimmy Siackasorn, who was 16 when he fatally shot Sacramento County Sheriff's Detective Vu Nguyen; and Frank Abella, who, with another suspect, robbed, tortured and fatally shot disabled William Deer just shy of Abella's 18th birthday.

Yee reacts in a separate story:

"Ms. Scully is misinformed on this issue and her remarks are misguided," said Yee. "The individuals she references will never be released under this bill, and she should know that. The public and the families of victims deserve better than fear-mongering from their elected district attorney.

"She fails to recognize that children have a greater capacity for rehabilitation than adults and that some kids deserve a second chance," Yee said.

Yee's unequivocal statement that they will never be released is a falsehood. He does not and cannot know that to a certainty. They would eligible for consideration for release under his bill, and we know very well that courts sometimes order release for persons eligible even when the parole board denies parole.

Yee's implication that the victims' families are on his side has enraged the National Organization of Victims of Juvenile Lifers.  Their press release is here.

And once more, with feeling, 16- and 17-year-olds are not children.

Heritage Foundation's excellent report on this issue is here.

Today, President Obama signed the Fair Sentencing Act of 2010. This act raises the amount of crack cocaine needed for various sentencing levels, reducing the crack/powder ratio to about 18.  In 1986, the Reagan Administration proposed a ratio of 20. In Congress, then-Senator Biden and others boosted the ratio to 100.  See 153 Cong. Rec. S8614, col. 2 (daily ed. June 27, 2007) (statement of Senator Biden). So, as of today, we are essentially back to the Reagan Administration proposal.

A little less than four months ago, in this entry, I noted that "compassion"  --  the ever-present cry of the criminal defense bar  --  was being invoked, as usual, to bring about undeserved leniency for a hoodlum.  What was different this time was that it was no ordinary hoodlum.  It was the mastermind of the Lockerbie bombing.  He was being released, so we were told, because, due to cancer, he had three months or less to live.  As the London Evening Standard put it at the time:

 

Scottish Justice Secretary Kenny MacAskill defied pressure from Washington and the relatives of many of the 270 victims to order the release.

He said the Scottish people pride themselves on their "humanity" and that al-Megrahi was now facing a sentence from a "higher power".

He added: "Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days.

"But that alone is not a reason for us to deny compassion to him and his family in his final days. Our justice system demands that judgment be imposed but compassion be available."

 

What it actually turns out to demand is outright fraud on behalf of mass murderers.  It appears that. lo and behold, Mr. al-Megrahi will live indefinitely.  The "three months" was, um, you know, kind of a guess.  Or, somewhat less generously,  it seems that the whole thing was a pack of lies.

Moral of story:  When you start to hear the braying about compassion, watch your wallet.

NPR is doing a series on psychopathy and responsibility.  The series is a timely one given the growing interest in the field of neurolaw and those who argue that psychopaths should be entitled to excuse or substantial mitigation due to their impaired brains.  In today's segment airing on NPR I offer a skeptical- albeit brief - view.  

There's a good deal of hand-wringing going on about the United States as "incarceration nation." This is typically followed by a call for more "humane" or "creative" sentencing such as counseling and anger management.  These represent more enlightened options for the much-ballyhooed "first-time, non-violent" offender  --  which apparently means all of them, since the "incarceration nation" crowd is seldom able to locate an inmate who might actually be dangerous.  Counseling and anger management will do.

Hence this delightful story from near my hometown:

 

ALEXANDRIA, Va. (AP) -- A former priest and anger-management counselor who pulled a gun in a traffic dispute on two men who happened to be U.S. Marshals has been sentenced to a year in prison. Fifty-seven-year-old Jose Luis Avila of Annandale pleaded guilty earlier this year in U.S. District Court to assaulting a federal officer.

In January, Avila was driving by the marshals near his home. He honked his horn because he believed they were standing in the road. When he thought one of the marshals made an obscene gesture at him, he pulled out a loaded handgun.

The 12-month sentence was in line with what prosecutors had sought. Defense lawyers wanted probation or time served; Avila has been jailed since January.

Avila has also been ordered to undergo anger management.

 

Honestly, you can't make up stuff like this.

I was in the US Attorney's Office for the Eastern District of Virginia in the 1990's when we initiated Project Exile.  The point of the program was to subject violent, gun-wielding criminals --largely crack dealers-- to relatively harsh federal sentencing instead of the softer sentences in state court.  This considerably swelled the federal district court docket, and the judges didn't like it.  One of them threatened to hold the US Attorney in contempt.  (I helped represent her, I'm happy to say successfully, at the contempt hearing).

One thing prosecutors need to remember is that their constituency is the public, not the bench or bar.  This means they have to be ready for criticism from the latter, much of it unfair if not slanderous.  This will occasionally include outraged, if preposterous, allegations of racism, see, e.g., United States v. Olvis, 97 F.3d 739 (4th Cir. 1996).

Still, it's worth it.  As Doug Berman notes on SL&P, the Richmond Times Dispatch reported yesterday that, over the years of Project Exile, the murder rate in Richmond, once the highest in the country, has been cut by more than three-quarters.

Moral of story:  Impostition of the much-maligned tough federal crack and firearms sentences on thugs has saved innocent people a boatload of pain and misery, not to mention dozens of lives.

Irvine, California attorney Sandeep Baweja reaped $887,000 in attorney fees from a class action. That wasn't enough for him. Amanda Bronstad reports in NLJ:

A Southern California lawyer who lost more than $2 million from a class action settlement by investing client trust funds in the stock market has been sentenced to 18 months in prison.

Sandeep Baweja of the Baweja Law Group in Irvine, Calif., pleaded guilty in October to one count of wire fraud and one count of obstruction of justice after confessing that he had clandestinely transferred $2.5 million from an account at Union Bank of California into an online stock brokerage account with TD Ameritrade Inc. He used the brokerage account to make high-risk trades on the stock market. By December 2008, he had lost all but $55,000 of the money.

AUSA Richard Robinson thinks 18 months is not enough. I agree.