“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade.  Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder.  I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller.  Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another).  Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   (more…)

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Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

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The Challenge of Child Psychopaths

I’ve just finished reading this chilling article from the New York Times Magazine, “Can You Call a 9-Year-Old a Psychopath?” (5/14/12).  Using the story of a frighteningly cruel and cold-blooded 9-year-old as an illustration, the article presents evidence that violent adult psychopaths manifest a “distinctive lack of affect, remorse, or empathy” in childhood, and that these tendencies result from genetic brain defects.  According to the author, Jennifer Kahn,

[A] growing number of psychologists believe that psychopathy, like autism, is a distinct neurological condition – one that can be identified in children as young as 5.  Crucial to this diagnosis are callous-unemotional traits, which most researchers now believe distinguish “fledgling psychopaths” from children with ordinary conduct disorder.

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Who Is a “Supervisor”? We Know One When We See One

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Posner seemed to scoff at this approach:  (more…)

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Sentencing, Stereotypes, Porn, and Plain Error

Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders.  (For earlier cases, see here and here.)  In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt – 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”

The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.”  No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view.  But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.

But did this really rise to the level of plain error, as the Seventh Circuit held?

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Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990′s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

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Weisberg on the MPC: Sentencing

I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit.  He reflects on the Model Penal Code: Sentencing Draft in his essay “Tragedy, Skepticism, Empirics, and the MPCS,” 61 Fla. L. Rev. 797 (2009).  He is particularly interested here in the views of the MPCS on empirical social science as a basis for making sentencing policy.  He finds in the MPCS evidence of what he calls “tragic skepticism” about empirical proof in legal reform, which has both negative and positive dimensions: “(1) a sober recognition of the limited human knowledge about the effects of our laws that is offset (2) by a sensible, chastened, realistic commitment to a spirit of reasonable experimentation in an unknowable world.” (797)  Weisberg seems quite sympathetic to this stance (as, by the way, am I).

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Seventh Circuit Clarifies “Minor Role” Adjustment

As part of a larger scheme of mortgage fraud, Tomas Leiskunas acted as the straw purchaser of seven properties.  He was later indicted and pled guilty to wire fraud.  At sentencing, he sought a minor role adjustment, claiming that he acted at the direction of others and had no knowledge of the big-picture scheme.  The sentencing judge denied the adjustment, but the Seventh Circuit overturned that decision earlier today.  Along the way, the court helpfully clarified that the minor role analysis should focus on the defendant’s relative culpability, and not on whether his acts were necessary to the scheme or repeated many times.  Here is what the court said:

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Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More

Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography.  Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.

In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought.  Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.

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Allocution: A View From the Bench

Judge Mark Bennett (N.D. Iowa) has a fascinating essay on allocution in a recent issue of The Champion.  There’s a lot of very practical and pointed advice here for defense counsel, and I have no doubt it will have real value to many lawyers — especially those who happen to practice in front of Judge Bennett.  However, I find myself mildly troubled by some of the remarks.

Bennett makes clear that allocution really matters to him — defendants can help or hurt themselves a lot at sentencing by what they say and how they say it.  And he makes it equally clear that lawyering can have a big impact of the quality of the allocution.  This works out well, no doubt, for defendants who have experienced, capable counsel — particularly if it’s a lawyer who has appeared before Bennett before — but what about other defendants who aren’t so fortunate?

What Bennett indicates he is looking for may sound like commonsense to veteran judges and lawyers, but I’m not sure it will be so obvious to others. (more…)

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