Showing posts from November, 2011

Overcriminalization and Sentencing

The Wall Street Journal has a nice article about overcriminalization.  For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind." This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 s

Overcriminalization, Coercive Plea Bargaining, and California's Three Strikes Law

The Herald (Monterey County) has an interesting article about California's Three Strikes law and plea bargaining.  Portions of the fascinating article are below. Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes. They are serving life sentences under California's three-strikes law... Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs. A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a mi

J. Edgar - The Movie

Though less about plea bargaining and more about law & order generally, I thought it worth mentioning that the new movie  J. Edgar is out in theatres.  Here is a link to the trailer. Below is also a portion of a review by the L.A. Times . "J. Edgar" is a somber, enigmatic, darkly fascinating tale, and how could it be otherwise? This brooding, shadow-drenched melodrama with strong political overtones examines the public and private lives of a strange, tortured man who had a phenomenal will to power. A man with the keenest instincts for manipulating the levers of government, he headed the omnipotent Federal Bureau of Investigation for 48 years. Though in theory he served eight presidents, in practice J. Edgar Hoover served only himself. The full review from the L.A. Times is available here . Roger Ebert also has a review, which is available here . 

The Various Madoff Interviews of Late

Below is a link to the 20/20 interview of Bernard ("Bernie") Madoff's daughter-in-law.  The interview relates to the recent book written by Stephanie Madoff Mack entitled The End of Normal . Here is an abstract of the book. When the news of Bernard Madoff 's Ponzi scheme broke, Americans were shocked and outraged, perhaps none more so than the unsuspecting members of his own family. After learning that their father's legendarily successful wealth management company was "all just one big lie," Mark and Andrew Madoff turned their father in and cut off all communication with both parents. Mark and his wife, Stephanie, strove to make a fresh start for the sake of their two young children, but Mark could not overcome his sense of betrayal and shame-he and other family members were sued for $200 million in October of 2009. He hung himself on the two-year anniversary of his father's arrest. Left to raise her children as a single mother, Stephani

Supreme Court Examines Plea Bargaining and Ineffective Assistance of Counsel

The LA Times has a nice editorial examining the two plea bargaining cases heard by the Supreme Court last week - Frye and Cooper .  The cases address the issue of defendants who turned down plea deals due to attorney malpractice.  Should such defendants be able to recpature the deals they previously rejected? Below is a portion of the LA Times piece. In 2007, Galin E. Frye was charged by the state of Missouri with driving with a revoked license, a felony because he had several previous convictions. The district attorney offered Frye's lawyer a plea bargain under which Frye would serve only 90 days in prison. The lawyer, however, didn't inform Frye of the offer, and Frye ultimately pleaded guilty and received a three-year sentence. The second case stemmed from a 2003 incident in which Anthony Cooper shot a woman in her buttock and thighs, causing serious injuries. Prosecutors offered Cooper's lawyers a plea deal in which he would serve a minimum sentence of 51 to 85 m

ACLU Report: Banking on Bondage - Private Prisons and Mass Incarceration

The ACLU has issued an interesting report on private prisons entitled Banking on Bondage . The introduction to the executive summary is below. The imprisonment of human beings at record levels is both a moral failure and an economic one—especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises. This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group—the private prison industry—even as current incarceration levels harm the country as a whole. While the nation’s unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading c

Former Schottenfeld Group LLC Trader Sentenced to No Prison for Cooperation

According to Bloomberg , David Plate, a former trader at Schottenfeld Group LLC has received no prison time for his role in the massive Galleon Group insider trading case. David Plate, who admitted to participating in an insider-trading ring with ex-Galleon Group LLC trader Zvi Goffer and testified at his trial, was sentenced to three years’ probation and six months’ house arrest. Plate, 36, a former trader at Schottenfeld Group LLC, was one of 26 people charged in two overlapping insider-trading cases involving Galleon Group founder Raj Rajaratnam. He pleaded guilty in July 2010 to securities fraud and conspiracy to commit securities fraud and testified at the trial of Goffer, his brother Emanuel Goffer and trader Michael Kimelman. U.S. District Judge Richard Sullivan in Manhattan, who presided over the case, today called Plate a “significant”prosecution witness who deserved a reduced term because of the help he gave to the government. He cited the recommendation of Assistant U

Dervan on Overcriminalization and Plea Bargaining

In my recent article entitled " Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization ," which appeared in George Mason's Journal of Law, Economics and Policy , I discuss the manner in which plea bargaining and overcriminalization rely on each other for their very existence.  An abstract for the article is below, and you access a copy of the article by clicking here and downloading it for free. In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, thi

Oil Refiner Facilities Manager Pleads Guilty in Environmental Case

BNA White Collar Crime Report states that a former manager for an oil refiner has pleaded guilty to "negligent endangerment in connection with the release of extremely high levels of hydrogen sulfide" in Louisiana.  According to the government press release (available here ): The former asphalt facilities manager of Pelican Refining Company LLC (PRC), pleaded guilty today [october 31, 2011] to the crime of negligent endangerment under the Clean Air Act in federal court in Lafayette, La., announced Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice and Stephanie A. Finley, U.S. Attorney for the Western District of Louisiana. Mike LeBleu served as the asphalt facilities manager of the Pelican Refinery in Lake Charles, La., from May 9, 2005, through Oct. 15, 2009. LeBleu was a member of upper management with regard to the asphalt plant and had overall responsibility for the plant’s operations and

Underwear Bomber Pleads Guilty

Though I was traveling when this occurred, I wanted to post a link to a New York Times story regarding the guilty plea of Umar Farouk Abdulmutallab, known as the underwear bomber. On December 25, 2009, Abdulmutallab attempted to bring down a plane on its approach to Detroit from Amsterdam by detonating explosives hidden in his underwear. The plane was carrying nearly 300 passengers. Fortunately, the explosives failed and pilots were able to make an emergency landing at Detroit where Abdulmutallab was taken into custody. According to the New York Times, "Prosecutors and federal agents seemed stunned, if pleased, and declared that the plea was evidence that the American court system, as opposed to a military tribunal, could bring a suitable outcome to a terrorism case." The New York Times story continued: Almost two years after fellow passengers flying aboard Northwest Airlines Flight 253 watched in panic and confusion as smoke and flames rose from Mr. Abdulmutallab’s lap, he