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Articles Posted in Sentencing

Former Congressman Anthony Weiner was just sentenced to 21 months in prison for sexting with a 15-year-old. At sentencing, his lawyer asked that he be sent to FCI Schuylkill in Pennsylvania. That seems to have been a mistake: Schuylkill is a medium-security prison, filled with violent offenders and replete with restrictive rules. Schuylkill has a satellite camp, but as a sex offender, Weiner is not eligible (he gets the “Sex Offender Public Safety Factor” and therefore must go to a secure facility). There are low-security federal prisons that would be far more pleasant and conducive to the year-and-a-half or so of introspective atonement that Weiner will endure while he waits to go to a halfway house. The New York Times wrote about Weiner’s placement in federal prison, but, unfortunately, just about everything in their story was wrong.

The bottom line is that “designation” to a particular federal prison is a complicated process with far-reaching consequences. Experiences in federal prison vary widely. Camps like the ones at Schuylkill and Otisville are unsecured and generally not unpleasant places to be. Contrast that with the “ADX” at Florence, Colorado, which is reserved for the most dangerous criminals in the United States and drives many of its residents mad. The Bureau of Prisons decides where you will go in the weeks after sentencing at a central facility in Grand Prairie, Texas. They rely on the Presentence Investigation Report (known as the PSR) for facts about you and plug those into a formula that determines your security level. It is essential that the information in the PSR is accurate as any mistake could change which facility you end up in. There is a small industry of experts who keep up with the daily changes in conditions within the Bureau of Prisons and can advocate for a particular designation. The process is laid out in this 108-page BOP policy.

The New York Times missed most of this in talking about Weiner, whose situation is not too different from many first-time federal offenders, including people convicted of child pornography. Being a former congressman and pledging himself to “a rigorous curriculum of rehabilitation and therapy” probably make no difference at all. Whatever his lawyer may have believed (and it does not seem like they thought about it beforehand), there is zero chance he would have been assigned to a prison in New York City: the three federal jails in New York are reserved for inmates who are awaiting sentencing or witnesses for the government, plus a small cadre of trusted inmates near the end of their terms who work in the local jails.

In a decision that could have a wide-ranging effect on people convicted of child pornography offenses, the Second Circuit last month struck down a 225-month sentence imposed on a man convicted of having illegal material on his laptops and a thumb drive as he tried to drive into Canada. Joseph Jacobs was 39 years old and headed to his parents’ vacation home in Quebec when Canadian officials stopped him. He failed to show up for court in Canada, so charges were brought in the U.S. for “transporting” his personal collection of child pornography, which carries a maximum sentence of twenty years in prison. Other than that, his conduct was not remarkable: there was no evidence he produced child pornography, shared illegal photos, used a file sharing system, or tried to solicit a child. What he did do, though, was annoy the sentencing judge. He testified at his own trial and lied, then was rude and obnoxious at the sentencing hearing, showing no empathy for the victims or regard for the legal system.

Still, the appeals court said that a sentence near the statutory maximum was far too high in these circumstances: “A sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable.” The opinion provided several reasons for the panel’s decision which could be used in other cases. It noted Jacobs was already 39 at the time of the crime and that recidivism is lower in offenders that old, as compared to younger offenders. It provided statistics from the U.S. Sentencing Commission showing that 225 months was longer than almost all child pornography possession sentences. It reiterated the holdings and reasoning of U.S. v. Dorvee, which had found that the main sentencing guideline for child pornography was “irrational” and “eccentric” because its many enhancements (“specific offense characteristics” in Guidelines terms) were present in virtually every case. It noted that since Dorvee, that concern had only become stronger because the Sentencing Commission had since “effectively disavowed” the flawed guideline and “the latest statistics on the application of sentencing enhancements confirm that the enhancements Jenkins received under this Guideline are all-but-inherent.”

These are powerful words coming from the appeals court that oversees all sentencing in the Southern and Eastern District of New York. Throwing out a sentence based on “substantive reasonableness” is rare — it happened last year in another child pornography case, but that was a summary order with little precedential weight. People facing sentencing on child pornography charges would be well advised to carefully consider the arguments presented by the panel in U.S. v. Jacobs and apply them to their own cases.

United States Attorney General Jefferson Sessions put out a tragic new policy today that, if it is followed, will ruin countless lives through the unyielding weight of the federal law. Under the policy, which is outlined in this memorandum “for all federal prosecutors,” the government will “charge and pursue the most serious, readily provable offense.” This means U.S. attorneys no longer exercise discretion, but instead will pursue people with the highest penalties, i.e. the longest Guidelines sentences and the harshest mandatory minimums, that they can. The new policy is a sea change, especially in drug cases, where prosecutors were previously directed to seek mandatory minimum sentences only against the most serious offenders (in case there was any confusion, Attorney General Sessions specifically rescinded that policy, known as the Holder Memorandum).

In child pornography cases, the new policy means that virtually all offenders may be charged with a mandatory minimum sentence of five years for “receipt” of illegal child pornography. While fraud cases generally do not carry mandatory minimums, it may mean that more defendants are charged with aggravated identity theft, which carries a two-year mandatory minimum sentence consecutive to any other sentence imposed. If individual prosecutors do not charge these “most serious, readily provable” offenses, they will have to get approval from the U.S. attorney for the district or an assistant attorney general, or their designee. Reasons not to charge must be “documented in the file.”

Defenders of over-criminalization in the federal system point to prosecutorial discretion as a counterweight to the thousands of acts that Congress has defined as federal offenses. Prosecutors, they argue, need to be able to bring serious charges in order to obtain cooperation from defendants and to force fair guilty pleas. But the Sessions memorandum, if read literally, would seem to turn that approach upside down: it directs prosecutors to charge as harshly as possible, no matter how extreme or unusual the law is. Of course, the U.S. Department of Justice has a long tradition of decentralization, leaving many crucial decisions and policies to local U.S. attorneys. Again, that ought to be a bulwark against overreaching under the federal criminal code. But the Trump administration seems intent on breaking down many of the customs that have kept the federal system, on balance, relatively fair. If the Sessions memo is followed, it spells tragedy for families gathered up in its broad, thoughtless net.

Does the jury’s opinion matter at sentencing? Almost never. But last week, a Sixth Circuit panel said that a trial judge did not go too far by polling the jury about their opinion on sentencing in a child pornography case and considering their answer under 18 USC 3553(a). The below-Guidelines sentence was affirmed in U.S. v. Collins.

After an Ohio jury found defendant Ryan Collins guilty of receiving and distributing child pornography, Judge James S. Gwin asked the jurors what the defendant’s sentence should be. The average recommended sentence among jurors was 14.5 months, with individual responses ranging from 0-60 months.

Under the federal sentencing guidelines, the defendant’s recommended sentence was 262-327 months, more than eighteen times the average sentence recommended by the jurors.

Finding a possibility that the sentencing judge had a “clearly erroneous understanding of the facts,” the Second Circuit Court of Appeals last week sent back a sixty-year child pornography sentence for another look by the district court. In United States v. Brown, the defendant had pled guilty to three counts of producing and two counts of possessing child pornography under 18 U.S.C. § 2251(a) and § 2252A(a)(5)(B). The trial court sentenced him to sixty years: effectively a life sentence.

In sending the case back to the sentencing court, Judge Rosemary Pooler noted the difference between producing child pornography and other, more serious crimes such as torture and murder.  As the Supreme Court has said, there is a categorical difference between defendants who “kill, intend to kill, or foresee that life will be taken” and those who harm others without causing or intending death. “This is because life is over for the victim of the murderer, but for the victim of even a very serious non-homicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.”

The circuit court also reasoned that an effective life sentence for a non-homicide offender could “frustrate the goal of marginal deterrence.” Prison sentences should, the court reasoned, be imposed as a way to deter individuals from re-committing the same crime.  In fact, defendants in child porn cases are generally less likely to re-offend as they get older. Finally, because the defendant would be subject to a lifetime term of supervised release and be required to register as a sex offender, there is an even lesser chance of him re-offending. The case was sent back to the district court for re-sentencing.

Last month, the Supreme Court ruled against a defendant’s appeal of his child pornography sentence in the Eastern District of New York, upholding a ten-year mandatory minimum based on an obliquely-worded statutory enhancement found in 18 U.S.C. Sec. 2252(b)(2). The mandatory minimum applies only if the defendant has previously been convicted of a crime related to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The defendant had been convicted of sex abuse of his 53-year-old girlfriend eleven years earlier. The question was, does sex abuse against an adult trigger the minimum? Judge Sterling Johnson held that it did and the Supreme Court agreed, reasoning that the “rule of the last antecedent” settled the matter.

Here’s how it works. In the sentence in quotes above, the defense argued, the phrase “involving a minor or ward” seems to apply to the whole sentence, so that the three different crimes — aggravated sexual abuse, sexual abuse, and abusive sexual conduct — only ought to trigger the ten-year minimum if they involve a minor or a ward. Makes sense right? Child pornography is about abuse of children, not sexual abuse generally which in New York can be very broad, applying to all non-consensual sexual contact and sometimes not even requiring sex offender registration if no child is involved. Why would sex abuse increase the sentence by ten years unless it was sex abuse against a child?

Not so fast, said the Supreme Court: “the phrase ‘involving a minor or ward’ modifies only the phrase that it immediately follows: ‘abusive sexual conduct.’ … [T]he phrases ‘aggravated sexual abuse’ and ‘sexual abuse’ are not so constrained.” To come to this conclusion, six justices dusted off the “timeworn textual canon” that the last phrase only modifies its immediate predecessor in a statute.

Video, transcripts and other information about principal attorney Zachary Margulis-Ohnuma’s testimony at the U.S. Sentencing Commission’s public hearing on November 5 is now available. The testimony, on behalf of the National Association of Criminal Defense Lawyers, endorsed a proposed amendment to the Sentencing Guidelines to eliminate the “residual clause” portion of the Guidelines’ definition of “crime of violence.”

NACDL also advocated for making the change retroactive, so that people serving long sentences based on the unconstitutionally vague language would be able to ask a judge to have another look. Here are links to the testimony and the video. Mr. Margulis-Ohnuma’s testimony is found in Part 3, starting around 17:20.

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The United States Sentencing Commission writes the Sentencing Guidelines which are the starting point for all federal sentences. The Guidelines define the term “crime of violence” in part through a “residual clause” that embraces any conviction involving a “serious potential risk of physical injury to another.” If you have two or more of these as prior crimes, you may face mandatory minimums and a long, long Guideline sentence. But the Supreme Court last spring struck down an identically-worded clause in the Armed Career Criminal Act as unconstitutionally vague and now the Sentencing Commission seems poised to do the same by eliminating the residual clause from the Guidelines too.

To that end, attorney Zachary Margulis-Ohnuma will testify before the Commission in Washington, D.C. on Thursday, November 5 at a public hearing to consider whether the residual clause should be eliminated, how crimes of violence should be defined, and whether any such changes should be made retroactive, i.e. should give prisoners a chance to shorten their sentences.

Mr. Margulis-Ohnuma will speak on behalf of the National Association of Criminal Defense Lawyers, which is the leading organization of criminal lawyers in the United States and represents around 40,000 lawyers through 90 state, provincial, and local affiliates. He joins distinguished defense lawyers, prosecutors and jurists who will be providing their views on the proposed changes. The testimony will be live streamed through the Commission’s website. The NACDL’s written testimony will be made public on Thursday morning.

As a law firm advocating for people accused or convicted of sex offenses, we focus on how sex offender registration sweeps in too many people and labels them as far higher risks than they actually are. The biggest problem with landing on a sex offender registry is the stigma associated with being blacklisted on a state-sponsored website chock full of personal (and often erroneous) information. But there are many other attacks on sex offenders, including limitations on where they can work and live. These restrictions are pointless and counter-productive, leading to ghettos of concentrated sex offenders in some extreme cases and preventing rehabilitation and reintegration into society in almost every case. In a welcome and overdue editorial, the New York Times has come out in agreement, arguing that local residency restrictions are pointless and lauding courts that have struck them down. Most of these laws have been overruled on technicalities — not because they are fundamentally unfair (which they are) but because they infringe on the state’s legislative authority.  The entire system needs to be revamped so that it applies only to violent offenders who pose a true threat, not to the thousands of people convicted of minor crimes, then prevented from re-entering society and haunted for life by the consequences. But recognition by the likes to the Times that residency restrictions are a real problem is a great early step.

In a decision that “should be written with tears,” Judge Jack Weinstein has scheduled a remarkable hearing for August 3 to explore how to handle a gut-wrenching case of a child-abuse survivor who apparently went on to use and produce child pornography himself. Last month, 26-year-old Darnell Washington pled guilty to charges of possession of child pornography and sexual exploitation of a child, and now faces a mandatory 15-year minimum prison sentence. At Darnell’s arrest more than two years prior, he admitted to possessing, receiving, and distributing child pornography. At the plea allocution, however, Judge Weinstein adjourned the sentencing and raised two issues sua sponte: whether Darnell has the mental capacity to plead guilty and whether sentencing him to the mandatory minimum constitutes cruel and unusual punishment in violation of the Eighth Amendment. Darnell was raised by the state. At a young age, he exhibited symptoms of fetal exposure to illicit substances. He was apparently raped by multiple foster parents. His mental development was poor, resulting in a “truncated education.” Darnell viewed child pornography repeatedly as an adolescent. At 20 years old, he pled guilty to sexual abuse and endangering the welfare of a child, based on his admission that he gave three young boys wedgies and showed one of them child pornography. During his three year incarceration, he was raped by fellow inmates. After he was released, he was diagnosed with various mental disorders including Post-Traumatic Stress Disorder and depression. Keeping in mind Darnell’s background, the psychological evaluations, his courtroom demeanor, and the legal principles at issue, on June 25 Judge Weinstein ordered an evidentiary hearing to explore five issues: 1. why Darnell decided to plead guilty rather than go to trial on an insanity defense given that the mandatory minimum sentence for a conviction at trial is the same as for a guilty plea; 2. whether Darnell has the mental capacity to plead guilty and forfeit his right to trial; 3. whether sentencing Darnell under the statutory minimum sentence is a violation of the Eighth Amendment; 4. alternatives to the mandatory minimum sentence if there is an Eighth Amendment violation; and 5. the risks posed by Darnell if released back into society before or after mental health treatment. The hearing remains scheduled for August 3, at which point Judge Weinstein will also consider Darnell’s July 6 letter to the Court, submitted under seal, requesting to be sentenced forthwith.

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