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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Should Defendants Have a Right to Cross-Examine Victims Who Make Impact Statements?

Paul Cassell and Edna Erez think not.  Their reasoning is set forth in an interesting new article, “Victim Impact Statements and Ancillary Harm: The American Perspective,” 15 Can. Crim. L. Rev. 149.  Apparently, Canadian law provides such a right, but the dominant view among the American states seems to be to the contrary.  Among other helpful contributions, Cassell and Erez provide a comprehensive 50-state survey of the relevant law.  Although the statutory law of most states is silent on this question, Cassell and Erez find that the case law, while still developing, is inclining against cross-examination.

The authors applaud this trend.  Their reasoning rests on three considerations.

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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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Why Following the Rules Should Get You Out of Prison Early

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.”  Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison.  It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated.  No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates.  Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation.  Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light.  In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime.  If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Why Confess?

Why do suspects confess to the police?  Researchers Allison Redlich, Richard Kulish, and Henry Steadman set out to answer this question by interviewing 65 individuals who had confessed to crimes, slightly more than half of whom claimed to have falsely confessed.  The results are reported in their new article “Comparing True and False Confessions Among Persons With Serious Mental Illness,” 17 Psych., Pub. Pol’y, & L. 394 (2011).  As the title indicates, the researchers were particularly interested in individuals with serious mental illness, which is a group that has been identified in the literature as especially likely to confess.

What I found most intriguing about the results was the importance of “internal pressure” as a motivation for confessing.  This refers to feelings of guilt about the crime, a desire to “get it off one’s chest,” and a belief in the importance of honesty.  Among the “true confessors,” guilt/honesty-type answers were the most common when the interviewer asked the open-ended question, “Tell me in your own words, why you confessed?”  (403)  (Not surprisingly, almost none of the “false confessors” cited this reason.)  By contrast, “external pressure” (e.g., bullying by the police) was rarely cited by either true or false confessors.  (The most common reason given for false confessions was a desire to protect someone else.)

Similarly, when subjects were asked to rate various suggested motivations on a seven-point scale (1 was “not at all” a reason, and 7 was “very much so”), the true confessors rated guilty feelings as among the more important, with an average score of 3.52.  (407)

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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. Continue reading “Allocution: A View From the Bench”