Ted Stevens, the 84-year old Republican Senator from Alaska, was recently convicted of 7 felony counts of lying on federal disclosure forms. (The media has inaccurately been saying that he was convicted of corruption but the prosecutors did not allege that any bribery, blackmail, or favors were involved in the receicing of the gifts.... they simply claim he intentionally did not disclose the gifts, which primary involved improvements to his home.)
However, Ted Stevens has been claiming that he is NOT a convicted felon.
So which is it? Is he a convicted felon or not?
Yes. :)
He was convicted by a jury but the conviction is not final until all appeals have been exhausted and the judge sentences the defendant. It is the issuance of the Judgment and Commitment after sentencing that establishes the conviction. (By the way, that is also why Kenneth Lay, of Enron, had his sentence vacated when he died before being sentenced.)
So, does this mean Ted Stevens was allowed to vote (see here also) in his own Senate race for re-election (which he appears to have won by the way -- there is no restriction on a felon serving as a Senator, although if his appeals fail, it is possible the Senate will remove him)?
Actually, yes.
I had the same thing happen to me in 2006. On October 13, 2006, three weeks before the mid-term elections, I entered a guilty plea and was scheduled to be sentenced in January, 2007.
I asked my lawyer if I was allowed to vote. She didn't know and asked the prosecutor. He said he does not notify the board of elections until after sentencing and that it is ok for me to vote because I was not yet a convicted felon, despite my guilty plea. Therefore Stevens was legally allowed to vote.
In any case, Stevens has significant grounds for appeal. Unfortunately, most citizens don't pay attention to details on matters like this and automatically assume he's a crooked politician and that the prosecution wears the white hat.
Not so fast.
There was significant prosecutorial mischief and even misconduct (see here also) in this case that form the basis for an appeal. Despite the convictions (which are exceedingly easy to get in federal court), the charges were relatively weak. Stevens was NOT charged with corruption, merely not reporting the gifts. He is guilty of a procedural, not a substantive, sin. It is a problem of appearance. The idea that someone could be a convicted felon and spend time in prison for not reporting something is just silly, especially since no one is alleging that anyone was harmed (except the intangible claim that "the people" are entitled to know who is giving stuff to their elected leaders). I don't think people pay enough attention to these things to know how really trivial this case was.
While Stevens apparently, according to Colin Powell, has a "sterling" reputation, he was combative and aggressive while on the stand, an approach that probably didn't serve him well. After 40 years in the Senate, he is used to having things his way and didn't much appreciate the female prosecutor questioning his integrity.
Again, a situation in which an unsympathetic, powerful, celebrity defendant is aggressively (to the point of abuse) prosecuted for relatively minor charges.
Personally, I hope he wins his appeal but I'm not holding my breath.
Wednesday, November 5, 2008
Voting Rights and Felons
As I have discussed before, felons have limited voting rights. The precise restrictions vary from state to state (see this document for list of state rules). There are only two states who permanently disenfranchise felons -- Kentucky and Virginia. Florida was in the same group but changed their policy last year.
Most states, including North Carolina where I live, allow felons to re-register to vote once they have completed all terms of their sentence. In my case, that means when I complete my term of supervised release, I can re-register to vote. For some felons, however, huge fines (e.g. white collare fraud defendants) with no hope of ever fully repaying mean that they will never fulfill the terms of their sentence, thereby, effectively disenfranchising them permanently.
Yesterday, my wife voted and noted that my name was still on the voting roster (since the names are listed alphabetically when the poll-working marks you off, she was able to see my name). I had been informed that the prosecutor in Philadelphia was supposed to send my judgment document to the state election board, who is to remove me from the list.
I called my probation officer and asked him if I was allowed to vote since my name was still on the list. I figured that it is the state's job to prevent me from voting and if, by oversight, they left me on the role, then I get to vote. My PO nixed that thought really quick. While not knowing why my name was still on the roster, he said I would get in trouble if I voted. Sigh!
Just as well. I am a life-long Republican and have NEVER voted for a Democrat. This year, however, I was tempted and I STILL don't know who I would have voted for. I am so disappointed in my party and I like about 80% of Obama, but I disagree with him on some very fundamental values and principles.
So.... I'm glad I had an excuse to sit this one out :)
Most states, including North Carolina where I live, allow felons to re-register to vote once they have completed all terms of their sentence. In my case, that means when I complete my term of supervised release, I can re-register to vote. For some felons, however, huge fines (e.g. white collare fraud defendants) with no hope of ever fully repaying mean that they will never fulfill the terms of their sentence, thereby, effectively disenfranchising them permanently.
Yesterday, my wife voted and noted that my name was still on the voting roster (since the names are listed alphabetically when the poll-working marks you off, she was able to see my name). I had been informed that the prosecutor in Philadelphia was supposed to send my judgment document to the state election board, who is to remove me from the list.
I called my probation officer and asked him if I was allowed to vote since my name was still on the list. I figured that it is the state's job to prevent me from voting and if, by oversight, they left me on the role, then I get to vote. My PO nixed that thought really quick. While not knowing why my name was still on the roster, he said I would get in trouble if I voted. Sigh!
Just as well. I am a life-long Republican and have NEVER voted for a Democrat. This year, however, I was tempted and I STILL don't know who I would have voted for. I am so disappointed in my party and I like about 80% of Obama, but I disagree with him on some very fundamental values and principles.
So.... I'm glad I had an excuse to sit this one out :)
Low Intensity Supervised Release
Several weeks ago, my supervised release status was changed to "low intensity." I still must abide by the terms of supervised release but the manner in which my compliance is monitored has changed.
Previously, I saw my Probation Officer once a month (he usually stopped by my house... a home visit) and filed a written report at the beginning of each month. For most people, the written report is a simple one page (front and back) document that takes 5 minutes to fill out. However, because I am self-employed, I had to provide more detailed financial details -- usually about 12 pages worth -- which took me a couple hours to compile.
Now, I simply call into a compliance reporting system at the beginning of each month, enter my PACTS NUMBER (I don't know what PACTS is an acronym for) and record my responses to several questions. It takes less than two minutes (I submitted my report on Monday).
I had to appear at the Probation Office last month to set up the system, which involved recording the phone number I would be calling in from in addition to recording several phrases which are used for voice identification. In other words, the combination of phone number and voice identification authenticates that I am in fact the person submitting the report instead of having someone else do it for me.
I have also been assigned a new probation officer who handles the low intensity program, although she just had a baby yesterday so I don't know who my new PO is :)
In any case, the low intensity program removes the only real inconvenience of being on supervised release. I still have to get permission to leave the district and abide by the other terms but those are not difficult.
Previously, I saw my Probation Officer once a month (he usually stopped by my house... a home visit) and filed a written report at the beginning of each month. For most people, the written report is a simple one page (front and back) document that takes 5 minutes to fill out. However, because I am self-employed, I had to provide more detailed financial details -- usually about 12 pages worth -- which took me a couple hours to compile.
Now, I simply call into a compliance reporting system at the beginning of each month, enter my PACTS NUMBER (I don't know what PACTS is an acronym for) and record my responses to several questions. It takes less than two minutes (I submitted my report on Monday).
I had to appear at the Probation Office last month to set up the system, which involved recording the phone number I would be calling in from in addition to recording several phrases which are used for voice identification. In other words, the combination of phone number and voice identification authenticates that I am in fact the person submitting the report instead of having someone else do it for me.
I have also been assigned a new probation officer who handles the low intensity program, although she just had a baby yesterday so I don't know who my new PO is :)
In any case, the low intensity program removes the only real inconvenience of being on supervised release. I still have to get permission to leave the district and abide by the other terms but those are not difficult.
Friday, October 3, 2008
I Made the Wall Street Journal
Early last week, I got a call from a reporter with the Wall Street Journal, who was doing an article on the use of cans of mackerel as currency in prison. You may recall I wrote an article about this a while back.
Yesterday, the WSJ published the article with a small reference to me near the end of the article:
http://www.wsj.com/article/SB122290720439096481.html?mod=article-outset-box
Yesterday, the WSJ published the article with a small reference to me near the end of the article:
http://www.wsj.com/article/SB122290720439096481.html?mod=article-outset-box
Monday, August 4, 2008
Early Termination of Supervised Release
As I alluded to in my previous post, June 28 was the one year anniversary of my release from prison which also means I have completed my first year of supervised release (I was sentenced to the maximum 3 years).
By statute, I can appeal to the judge in my case to terminate my supervised release early. According to 18 USC §3583(e)(1):
As I continued to study this matter as my one year anniversary approached, I concluded that I could make a solid legal case for early termination. In addition, to this point, the judge had responded positively to every other motion we presented to him so I thought I might have a receptive audience.
However, as I mentioned in the previous post, the US Probation Office in Philadelphia (Eastern District of Pennsylvania) had suggested transferring jurisdiction to Charlotte (Western District of North Carolina) in a May 9th letter (that also included permission from the judge for international travel -- see previous post). Presumably since Charlotte was actively supervising my case, Philadelphia decided she might as well assume complete jurisdiction.
I had discussed with my Probation Officer this issue of requesting a transfer jurisdiction to Charlotte at the beginning of my release last year in the hopes of securing a more favorable environment for possible early termination. However, the policy of the US Probation Office in Charlotte is that a defendant must complete two-thirds of his term before it will recommend early termination and the judges here apparently are sticklers for that rule and rarely grant motions from defendants for early termination prior to that. As it turns out, many districts (including Philadelphia) consider early termination after only one-half of the term is completed. Therefore, we considered it better to keep jurisdiction up there for now.
When jurisdiction is transferred, that means the current judge assigned to the case must agree to give up control of the case and the Senior Judge in the new district must accept the transfer. We had always assumed that Judge Davis would not likely relinquish control of my case even if I had sought a transfer of jurisdiction so it was ironic that the US Probation Office up there brought up the issue of a transfer first.
However, I was not wanting to move so fast because I wanted Judge Davis to consider my motion for early termination on June 28, which was still over 6 weeks away. If jurisdiction were transferred before then, Judge Davis would not be in position to rule on my motion and I would have to present it to a new judge down here who was not familiar with me or my case and might not be as favorably disposed as Judge Davis. At least, that was my thinking.
As the end of June approached (and as I was dealing with travel plans for Europe and obtaining my passport from the Clerk of Court after receiving permission to travel -- see previous post), I began to prepare my motion. I wanted to prepare it myself for two reasons: 1) my lawyer is very expensive and she was preparing for maternity leave (her baby was born June 24) and 2) I wanted the judge to hear the motion directly from me so that he would have to turn me down, not my lawyer.
Filing your own motion is referred to as pro se. It is somewhat risky because when the judge's law clerks receive the motion, they may lump it in the same category as the many frivolous other pro se motions they receive and it may not get the consideration it deserves, regardless of the merits. Nonetheless, I preferred to go forward this way.
You can read my motion here as well as the prosecutor's rather weak opposition motion here.
I had always wondered why the judge sentenced me below the guidelines to only 3 months but gave me the maximum 3 years of supervised release. It was very odd and he did not explain.
Nonetheless, I had (and my lawyers, who read my motion, agreed) a very strong practical and legal case for terminating my supervision early. Without restating the entire motion, which I hope you will read, basically my arguments were:
1. I have complied with all terms of my supervision to date (as could be confirmed by my Probation Officer) and had satisfied all of the relevant concerns identified by the US Probation Office for consideration of early termination (see here).
2. Supervised release has a separate function from incarceration. Whereas incarceration has both a punitive and deterrant function, supervised release is rehabilitative; it is designed to ease the transition back to the community. Supervised release is NOT part of the punishment.
3. The conditions of supervised release, while not onerous, DO prevent me from doing good things such as providing assistance to current and recently released inmates I have befriended. In other words, not only does supervised release no longer accomplish anything positive in my case anymore, it actually prevents me from doing good.
My lawyers considered my motion well-written and persuasive. On the merits I was right. The prosecutor attempted to argue wrongly that supervised release is part of the punishment. I just think he didn't want to bother with a more thoughtful response. Surely he has more important things to do.
My probation officer and my lawyer had learned in early June that the US Probation Office in Philadelphia was opposed to early termination at any time prior to the 3 years. This was very suspicious because they really had no basis on which to judge this, having never actively supervised my case. Their position appeared to be that because I got such a lenient prison sentence, I should have to serve the whole term of supervised release. This is totally silly because one would expect the term of supervised release to be proportional to the term of prison. After all, one would not expect a person such as myself who only spent 3 months in prison, is self-employed and totally financially self-sufficient the day I walked out of prison (my business continued to run successfully while I was incarcerated), would need 3 years to readjust to community life in the same way someone who spent several years in prison. The US Probation Office's position was just a petty attempt to exact punishment on the back end that they were unable to secure on the front end.
Nonetheless, I filed my motion at the end of June and it should have been received by the Probation Office, the US Attorney's Office, and the Judge on June 30. My lawyers figured it would take at least a month, and maybe longer, before the judge ruled. I was scheduled to be in Europe July 9-31 so I was in no hurry.
As it turns out, nothing is ever routine in my case. The day before I was to leave for Europe (July 8), my PO stops by the house to inform me that on June 24 -- 4 days before I could request early termination -- Judge Davis signed a transfer of jurisdiction document. This was very odd. The US Probation Office in Philadelphia knew I was planning on filing for early termination and yet, on the eve of that filing, they recommended to the judge, who did not know I would be filing for early termination, that jurisdiction should be transferred to Charlotte. And he apparently agreed.
Of course, the paranoid interpretation is that the Probation Office in Philadelphia was intentionally attempting to thwart my motion with the Judge, knowing that in the past he had ruled sympathetically in my case. Who knows?
Since jurisdiction is not transferred until a judge in Charlotte accepts the transfer, technically speaking, Judge Davis still had jurisdiction in my case and could rule on my motion, although he must have thought it odd to receive a motion for a case in which he thought he had given up jurisdiction. We weren't sure what was going to happen. He could dismiss the motion as moot. He could attempt to transfer the motion down here. Or, he could simply rule on it.
In any case, the prosecutor in my case, Michael Levy, filed a one page letter in opposition to my motion on July 11. It is not clear that he was even aware of the transfer in process; it is not customary to include the US Attorney's Office in those discussions so he responded as if Judge Davis still had jurisdiction.
On July 29, the last full day of my trip (I was in Barcelona), I received an email from my lawyer indicating that Judge Davis had denied my motion on July 16 in a one-sentence order, without explanation.
I wasn't necessarily surprised that my motion was not granted, although I was a little disappointed that the Judge did not bother to comment on the merits. I think anyone who understands my case and reads my motion would agree that, on the merits, termination of supervised release is not only the legally correct outcome, but the practically and morally right outcome. I expect the US Attorney's Office to disagree; that's their job. (Actually, it's not their job -- their job is to seek justice, not to be adversarial and seek the maximum punishment possible, but that notion seems to have escaped most prosecutors in today's federal system.)
But I am not naive to think that institutional considerations do not play a role in judge's decisions. The US Probation Office is a branch of the court system and therefore works very closely with the judges. Policies exist for a reason. That reason however is expediency and efficiency, not justice. Simply applying a "one-size-fits-all" approach to early termination by requiring that all defendants wait a pre-determined period of time before consideration of early termination makes life easier for the players in the system. Granting an exception to the policy (even if justified by the facts and the law) simply invites other similarly situated defendants to seek exceptions. Too many requested exceptions increases the Court's and the Probation Office's workload.
So where does that leave me?
As of this moment, I do not know if the transfer of jurisdiction has been completed. I have a call into my PO to find out my status. I am assuming that it has unless something else weird happens, which I have learned not to rule out!
In one sense, I suppose it makes it more difficult to seek early termination from a judge in Charlotte, having already been turned down by Judge Davis in Philadelphia. However, my motion was denied without comment on the merits. Perhaps it was simply denied because the judge considered it moot and simply didn't bother to consider the arguments. After all, he did rule rather quickly. He barely would have had time to read the motion, let alone rule on it. Then again, he perhaps considered it frivolous to the point that it didn't require any of his time to deny it.
Who knows?
Whatever.
It's all good. (Another phrase I learned in prison.)
PS After talking with my PO today, it appears that he was given permission to hold up the transfer until Judge Davis had an opportunity to rule on my motion. Now that the motion has been denied, the transfer will be put in motion so I expect soon that I will have a new judge assigned to me in the Western District of NC. Apparently, also, the US Attorney's Office as well as the US Probation Office vigorously opposed my request, which may explain the outcome of my motion, despite its merits (IMHO).
By statute, I can appeal to the judge in my case to terminate my supervised release early. According to 18 USC §3583(e)(1):
The court may, after considering the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) terminate
a term of supervised release and discharge the defendant released at any time
after the expiration of one year of supervised release, pursuant to the
provisions of the Federal Rules of Criminal Procedure relating to the
modification of probation, if it is satisfied that such action is warranted
by the conduct of the defendant released and the interest of justice;
As I continued to study this matter as my one year anniversary approached, I concluded that I could make a solid legal case for early termination. In addition, to this point, the judge had responded positively to every other motion we presented to him so I thought I might have a receptive audience.
However, as I mentioned in the previous post, the US Probation Office in Philadelphia (Eastern District of Pennsylvania) had suggested transferring jurisdiction to Charlotte (Western District of North Carolina) in a May 9th letter (that also included permission from the judge for international travel -- see previous post). Presumably since Charlotte was actively supervising my case, Philadelphia decided she might as well assume complete jurisdiction.
I had discussed with my Probation Officer this issue of requesting a transfer jurisdiction to Charlotte at the beginning of my release last year in the hopes of securing a more favorable environment for possible early termination. However, the policy of the US Probation Office in Charlotte is that a defendant must complete two-thirds of his term before it will recommend early termination and the judges here apparently are sticklers for that rule and rarely grant motions from defendants for early termination prior to that. As it turns out, many districts (including Philadelphia) consider early termination after only one-half of the term is completed. Therefore, we considered it better to keep jurisdiction up there for now.
When jurisdiction is transferred, that means the current judge assigned to the case must agree to give up control of the case and the Senior Judge in the new district must accept the transfer. We had always assumed that Judge Davis would not likely relinquish control of my case even if I had sought a transfer of jurisdiction so it was ironic that the US Probation Office up there brought up the issue of a transfer first.
However, I was not wanting to move so fast because I wanted Judge Davis to consider my motion for early termination on June 28, which was still over 6 weeks away. If jurisdiction were transferred before then, Judge Davis would not be in position to rule on my motion and I would have to present it to a new judge down here who was not familiar with me or my case and might not be as favorably disposed as Judge Davis. At least, that was my thinking.
As the end of June approached (and as I was dealing with travel plans for Europe and obtaining my passport from the Clerk of Court after receiving permission to travel -- see previous post), I began to prepare my motion. I wanted to prepare it myself for two reasons: 1) my lawyer is very expensive and she was preparing for maternity leave (her baby was born June 24) and 2) I wanted the judge to hear the motion directly from me so that he would have to turn me down, not my lawyer.
Filing your own motion is referred to as pro se. It is somewhat risky because when the judge's law clerks receive the motion, they may lump it in the same category as the many frivolous other pro se motions they receive and it may not get the consideration it deserves, regardless of the merits. Nonetheless, I preferred to go forward this way.
You can read my motion here as well as the prosecutor's rather weak opposition motion here.
I had always wondered why the judge sentenced me below the guidelines to only 3 months but gave me the maximum 3 years of supervised release. It was very odd and he did not explain.
Nonetheless, I had (and my lawyers, who read my motion, agreed) a very strong practical and legal case for terminating my supervision early. Without restating the entire motion, which I hope you will read, basically my arguments were:
1. I have complied with all terms of my supervision to date (as could be confirmed by my Probation Officer) and had satisfied all of the relevant concerns identified by the US Probation Office for consideration of early termination (see here).
2. Supervised release has a separate function from incarceration. Whereas incarceration has both a punitive and deterrant function, supervised release is rehabilitative; it is designed to ease the transition back to the community. Supervised release is NOT part of the punishment.
3. The conditions of supervised release, while not onerous, DO prevent me from doing good things such as providing assistance to current and recently released inmates I have befriended. In other words, not only does supervised release no longer accomplish anything positive in my case anymore, it actually prevents me from doing good.
My lawyers considered my motion well-written and persuasive. On the merits I was right. The prosecutor attempted to argue wrongly that supervised release is part of the punishment. I just think he didn't want to bother with a more thoughtful response. Surely he has more important things to do.
My probation officer and my lawyer had learned in early June that the US Probation Office in Philadelphia was opposed to early termination at any time prior to the 3 years. This was very suspicious because they really had no basis on which to judge this, having never actively supervised my case. Their position appeared to be that because I got such a lenient prison sentence, I should have to serve the whole term of supervised release. This is totally silly because one would expect the term of supervised release to be proportional to the term of prison. After all, one would not expect a person such as myself who only spent 3 months in prison, is self-employed and totally financially self-sufficient the day I walked out of prison (my business continued to run successfully while I was incarcerated), would need 3 years to readjust to community life in the same way someone who spent several years in prison. The US Probation Office's position was just a petty attempt to exact punishment on the back end that they were unable to secure on the front end.
Nonetheless, I filed my motion at the end of June and it should have been received by the Probation Office, the US Attorney's Office, and the Judge on June 30. My lawyers figured it would take at least a month, and maybe longer, before the judge ruled. I was scheduled to be in Europe July 9-31 so I was in no hurry.
As it turns out, nothing is ever routine in my case. The day before I was to leave for Europe (July 8), my PO stops by the house to inform me that on June 24 -- 4 days before I could request early termination -- Judge Davis signed a transfer of jurisdiction document. This was very odd. The US Probation Office in Philadelphia knew I was planning on filing for early termination and yet, on the eve of that filing, they recommended to the judge, who did not know I would be filing for early termination, that jurisdiction should be transferred to Charlotte. And he apparently agreed.
Of course, the paranoid interpretation is that the Probation Office in Philadelphia was intentionally attempting to thwart my motion with the Judge, knowing that in the past he had ruled sympathetically in my case. Who knows?
Since jurisdiction is not transferred until a judge in Charlotte accepts the transfer, technically speaking, Judge Davis still had jurisdiction in my case and could rule on my motion, although he must have thought it odd to receive a motion for a case in which he thought he had given up jurisdiction. We weren't sure what was going to happen. He could dismiss the motion as moot. He could attempt to transfer the motion down here. Or, he could simply rule on it.
In any case, the prosecutor in my case, Michael Levy, filed a one page letter in opposition to my motion on July 11. It is not clear that he was even aware of the transfer in process; it is not customary to include the US Attorney's Office in those discussions so he responded as if Judge Davis still had jurisdiction.
On July 29, the last full day of my trip (I was in Barcelona), I received an email from my lawyer indicating that Judge Davis had denied my motion on July 16 in a one-sentence order, without explanation.
I wasn't necessarily surprised that my motion was not granted, although I was a little disappointed that the Judge did not bother to comment on the merits. I think anyone who understands my case and reads my motion would agree that, on the merits, termination of supervised release is not only the legally correct outcome, but the practically and morally right outcome. I expect the US Attorney's Office to disagree; that's their job. (Actually, it's not their job -- their job is to seek justice, not to be adversarial and seek the maximum punishment possible, but that notion seems to have escaped most prosecutors in today's federal system.)
But I am not naive to think that institutional considerations do not play a role in judge's decisions. The US Probation Office is a branch of the court system and therefore works very closely with the judges. Policies exist for a reason. That reason however is expediency and efficiency, not justice. Simply applying a "one-size-fits-all" approach to early termination by requiring that all defendants wait a pre-determined period of time before consideration of early termination makes life easier for the players in the system. Granting an exception to the policy (even if justified by the facts and the law) simply invites other similarly situated defendants to seek exceptions. Too many requested exceptions increases the Court's and the Probation Office's workload.
So where does that leave me?
As of this moment, I do not know if the transfer of jurisdiction has been completed. I have a call into my PO to find out my status. I am assuming that it has unless something else weird happens, which I have learned not to rule out!
In one sense, I suppose it makes it more difficult to seek early termination from a judge in Charlotte, having already been turned down by Judge Davis in Philadelphia. However, my motion was denied without comment on the merits. Perhaps it was simply denied because the judge considered it moot and simply didn't bother to consider the arguments. After all, he did rule rather quickly. He barely would have had time to read the motion, let alone rule on it. Then again, he perhaps considered it frivolous to the point that it didn't require any of his time to deny it.
Who knows?
Whatever.
It's all good. (Another phrase I learned in prison.)
PS After talking with my PO today, it appears that he was given permission to hold up the transfer until Judge Davis had an opportunity to rule on my motion. Now that the motion has been denied, the transfer will be put in motion so I expect soon that I will have a new judge assigned to me in the Western District of NC. Apparently, also, the US Attorney's Office as well as the US Probation Office vigorously opposed my request, which may explain the outcome of my motion, despite its merits (IMHO).
Sunday, August 3, 2008
International Travel and Supervised Release
One of the conditions of supervised release is that all travel outside of your home district must be approved by your probation officer.
In my case, this has always been routine. I simply notify him of my travel plans in advance and he gives me a permission to travel document (see example here). This document isn't really necessary for me to carry but is for my own benefit in case an issue arises while I am traveling and a police officer, if he somehow determines my status as a convicted felon on supervised release, inquires why I am out of my district, I can show him the document. Without the document, I might be detained until he can contact the US Probation Office to confirm my story.
In addition to providing the travel document, the US Probation Office in the district(s) I am traveling to is notified that I will be in their district. Again, this is mostly a formality.
International travel, however, is a different matter. All international travel must be approved directly by the judge.
I notified my PO in January that I had plans for two international trips this year: a 3-week vacation to Greece and Spain with my wife and her sister in July and a 1-week Caribbean wedding cruise for a friend in late October.
One of the complicating factors in my case is that the US Probation Office in Charlotte, NC (Western District of NC) actively supervises my release, however, my case is still under the control of Philadelphia (Eastern District of PA). That means the my probation officer has to go through another district's probation office in order to get approval from the judge. The approval process within this district is usually 7-10 days. However, due to the uncertainty of working with another district, my PO recommended beginning the process early.
I supplied my general travel itinerary in late February and my PO forwarded the request in early March.
Then we waited... and waited... and waited.
Finally May arrives and we still haven't heard anything. Our flights for Greece leave July 9 and I had already gone ahead and purchased tickets for fear that the flights would sell out. I knew this was a risk if the judge ended up turning down my request but in that case we figured my wife would just go with her sister.
It wasn't clear where the hold-up was -- with the US Probation Office in Philadelphia or with the Judge. We simply didn't know where the paperwork was and it is a little bit delicate to push the issue too hard for fear of offending someone and having them delay things further.
Finally, on May 9 we received a letter from the US Probation Officer in Philadelphia who apparently had been assigned my case as a result of this request (since their office did not actively supervise my case, no officer had previously been assigned). This letter included approval from the judge for my trip but interestingly also included a request to transfer jurisdiction to my home district.
For reasons I will explain later, we did not act on their request to transfer jurisdiction but the important thing at the moment was that I had received permission to travel outside the country. The prosecutor apparently had been consulted and he did not object as long as I had been satisfying all my conditions of supervised release.
All's well that ends well... except, the drama was not yet over.
At the end of May, I visited my PO to turn in my monthly report. Normally, I fax my report in but I wanted to complete the final of the 3 required drug tests. In addition, I asked for the return of my passport which I would of course need for my trip overseas. I had turned my passport over to my pre-trial services (PTS) officer in August, 2006 after I was indicted. My PO was not sure where it was now but we ran into the PTS officer in the hall and she indicated that she had forwarded it to Philadelphia.
Sigh.
My PO made a few phone calls to his alter ego in Philadelphia who tracked the passport down in the Clerk of Court's Office. However, he said they could not release it without a court order!
SAY WHAT!?!?
My PO (and, later, my lawyer) explained that we had a document from the judge granting permission to travel. Isn't that good enough? Apparently not. They want an actual court order.
On June 16 (3 weeks prior to my departure!), my lawyer filed a motion to release my passport.
On June 23, the judge signed an order releasing my passport. The order also included, as we requested, permission to keep my passport for the remained of my term of supervised release. This was important because the clerk of court would have expected me to return my passport upon return from my trip and then obtain ANOTHER court order to obtain my passport again for my October cruise that I had also already obtained permission for.
Insane!
In this district, apparently, my PO could have simply taken the judge's original letter approving the travel over to the clerk's office and they would have released the passport.
In any case, after almost 4 months of jumping through hoops, I had my permission to travel and I had my passport (after my lawyer retrieved it from the clerk's office and fedexed it to me).
I will write separately on my trip.
Now, as to the issue of transferring jurisdiction as well as completing my final drug test.
June 28 represented the one year anniversary of my release from prison and the beginning of my 3 year term of supervised release. By statute, I can request early termination of my supervised release after one year, which I intended to do. By completing my final drug test, my PO could certify that I have complied with all the conditions of my supervised release.
However, if jurisdiction was transferred, then I would have to make that request in this district. The official policy of this district is that early termination is only recommended after 2/3 of the term is completed (in my case, that would be 2 years). In Philadelphia, the policy is 1/2 (in my case, that would be 18 months). Furthermore, Judge Davis had ruled favorably on every issue we presented to him in this case so I was cautiously optimistic that he would likewise give favorable consideration to a request for early termination, especially if well presented. Thus, I was reluctant to have jurisdiction transferred to NC when I felt I had a more favorable environment for my early termination motion in Philadelphia.
For the story on how that turned out, you will have to read my next post :)
In my case, this has always been routine. I simply notify him of my travel plans in advance and he gives me a permission to travel document (see example here). This document isn't really necessary for me to carry but is for my own benefit in case an issue arises while I am traveling and a police officer, if he somehow determines my status as a convicted felon on supervised release, inquires why I am out of my district, I can show him the document. Without the document, I might be detained until he can contact the US Probation Office to confirm my story.
In addition to providing the travel document, the US Probation Office in the district(s) I am traveling to is notified that I will be in their district. Again, this is mostly a formality.
International travel, however, is a different matter. All international travel must be approved directly by the judge.
I notified my PO in January that I had plans for two international trips this year: a 3-week vacation to Greece and Spain with my wife and her sister in July and a 1-week Caribbean wedding cruise for a friend in late October.
One of the complicating factors in my case is that the US Probation Office in Charlotte, NC (Western District of NC) actively supervises my release, however, my case is still under the control of Philadelphia (Eastern District of PA). That means the my probation officer has to go through another district's probation office in order to get approval from the judge. The approval process within this district is usually 7-10 days. However, due to the uncertainty of working with another district, my PO recommended beginning the process early.
I supplied my general travel itinerary in late February and my PO forwarded the request in early March.
Then we waited... and waited... and waited.
Finally May arrives and we still haven't heard anything. Our flights for Greece leave July 9 and I had already gone ahead and purchased tickets for fear that the flights would sell out. I knew this was a risk if the judge ended up turning down my request but in that case we figured my wife would just go with her sister.
It wasn't clear where the hold-up was -- with the US Probation Office in Philadelphia or with the Judge. We simply didn't know where the paperwork was and it is a little bit delicate to push the issue too hard for fear of offending someone and having them delay things further.
Finally, on May 9 we received a letter from the US Probation Officer in Philadelphia who apparently had been assigned my case as a result of this request (since their office did not actively supervise my case, no officer had previously been assigned). This letter included approval from the judge for my trip but interestingly also included a request to transfer jurisdiction to my home district.
For reasons I will explain later, we did not act on their request to transfer jurisdiction but the important thing at the moment was that I had received permission to travel outside the country. The prosecutor apparently had been consulted and he did not object as long as I had been satisfying all my conditions of supervised release.
All's well that ends well... except, the drama was not yet over.
At the end of May, I visited my PO to turn in my monthly report. Normally, I fax my report in but I wanted to complete the final of the 3 required drug tests. In addition, I asked for the return of my passport which I would of course need for my trip overseas. I had turned my passport over to my pre-trial services (PTS) officer in August, 2006 after I was indicted. My PO was not sure where it was now but we ran into the PTS officer in the hall and she indicated that she had forwarded it to Philadelphia.
Sigh.
My PO made a few phone calls to his alter ego in Philadelphia who tracked the passport down in the Clerk of Court's Office. However, he said they could not release it without a court order!
SAY WHAT!?!?
My PO (and, later, my lawyer) explained that we had a document from the judge granting permission to travel. Isn't that good enough? Apparently not. They want an actual court order.
On June 16 (3 weeks prior to my departure!), my lawyer filed a motion to release my passport.
On June 23, the judge signed an order releasing my passport. The order also included, as we requested, permission to keep my passport for the remained of my term of supervised release. This was important because the clerk of court would have expected me to return my passport upon return from my trip and then obtain ANOTHER court order to obtain my passport again for my October cruise that I had also already obtained permission for.
Insane!
In this district, apparently, my PO could have simply taken the judge's original letter approving the travel over to the clerk's office and they would have released the passport.
In any case, after almost 4 months of jumping through hoops, I had my permission to travel and I had my passport (after my lawyer retrieved it from the clerk's office and fedexed it to me).
I will write separately on my trip.
Now, as to the issue of transferring jurisdiction as well as completing my final drug test.
June 28 represented the one year anniversary of my release from prison and the beginning of my 3 year term of supervised release. By statute, I can request early termination of my supervised release after one year, which I intended to do. By completing my final drug test, my PO could certify that I have complied with all the conditions of my supervised release.
However, if jurisdiction was transferred, then I would have to make that request in this district. The official policy of this district is that early termination is only recommended after 2/3 of the term is completed (in my case, that would be 2 years). In Philadelphia, the policy is 1/2 (in my case, that would be 18 months). Furthermore, Judge Davis had ruled favorably on every issue we presented to him in this case so I was cautiously optimistic that he would likewise give favorable consideration to a request for early termination, especially if well presented. Thus, I was reluctant to have jurisdiction transferred to NC when I felt I had a more favorable environment for my early termination motion in Philadelphia.
For the story on how that turned out, you will have to read my next post :)
Thursday, June 12, 2008
The Criminalization of Almost Everything
The Heritage Foundation is sponsoring a seminar on Tue, June 17, 2008 titled:
"Go Directly to (Federal) Prison: The Criminalization of Almost Everything"
I love the title because I have come to believe that any sufficiently motivated prosecutor could put anyone in prison for the violation of some federal law. In other words, if I randomly selected a citizen and assigned a federal prosecutor the task of investigating and prosecuting that individual, the scope (and ambiguity) of federal law and prosecutorial discretion and the severity of federal sentencing is such that he could put that citizen in prison. Even if that citizen if absolutely innocent, the plea bargaining leverage a prosecutor has would induce almost any rational person to accept a short prison term in order to avoid the expense of a trial and possibility of a very long sentence.
Robert Jackson, US Attorney General, made a famous speech almost 70 years ago that included the following remarks:
It is only human nature that concentrated, unchecked power will be abused.
The solution I believe is what this seminar addresses -- eliminate the vast majority of federal laws and return criminal enforcement to the states where the Constitution expected it to reside.
See http://www.heritage.org/press/events/ev061708b.cfm for more details.
UPDATE (6/22/08): I just listened to the video of the seminar at the link above and I was startled to discover that these guys agree with me. The law professor from Louisiana actually said that every individual in this country is indictable, subject only to the discretion of a prosecutor. Also, everyone involved in the criminal justice system except for Congress, DOJ and presidential staffers know the system makes no sense. The reason the system exists is because federal politicians discovered that federalizing offenses makes for good politics because no one wants to be portrayed as being "soft on crime."
"Go Directly to (Federal) Prison: The Criminalization of Almost Everything"
I love the title because I have come to believe that any sufficiently motivated prosecutor could put anyone in prison for the violation of some federal law. In other words, if I randomly selected a citizen and assigned a federal prosecutor the task of investigating and prosecuting that individual, the scope (and ambiguity) of federal law and prosecutorial discretion and the severity of federal sentencing is such that he could put that citizen in prison. Even if that citizen if absolutely innocent, the plea bargaining leverage a prosecutor has would induce almost any rational person to accept a short prison term in order to avoid the expense of a trial and possibility of a very long sentence.
Robert Jackson, US Attorney General, made a famous speech almost 70 years ago that included the following remarks:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.There is absolutely no doubt that the scope of federal law has expanded in almost every respect (especially drug and white collar crimes) and, with the development of the sentencing guidelines, Jackson's comments are even more true. A federal prosecutor is the most dangerous individual in America. That is not meant to impugn the prosecutorial function or the integrity of prosecutors in general; it is simply meant to draw attention to the virtual unchecked and unaccountable power that federal prosecutors have.
It is only human nature that concentrated, unchecked power will be abused.
The solution I believe is what this seminar addresses -- eliminate the vast majority of federal laws and return criminal enforcement to the states where the Constitution expected it to reside.
See http://www.heritage.org/press/events/ev061708b.cfm for more details.
UPDATE (6/22/08): I just listened to the video of the seminar at the link above and I was startled to discover that these guys agree with me. The law professor from Louisiana actually said that every individual in this country is indictable, subject only to the discretion of a prosecutor. Also, everyone involved in the criminal justice system except for Congress, DOJ and presidential staffers know the system makes no sense. The reason the system exists is because federal politicians discovered that federalizing offenses makes for good politics because no one wants to be portrayed as being "soft on crime."
Wednesday, June 11, 2008
Anonymous Letter From Prison
I received an anonymous letter the other day from an inmate in FPC Pensacola who apparently remembers me. Quite interesting and unexpected. Let me share a few excerpts:
First, there were some guys there who knew I was writing a blog and, from what I could tell, it made them nervous. They didn't trust me and thought I was just going to get guys in trouble. I even had one inmate tell me I was dangerous. Typical inmate paranoia.
However, several guys have since reported to Pensacola after reading my blog so maybe they passed the word that my blog was ok.
Second, as for the warden, assistant warden and CMC not liking it, I don't know why. Maybe just typical BOP paranoia! They just don't like having the light shined (?) on their prison. They are used to being in control and hate losing it. Welcome to the club!!
I think I have been very fair to BOP and the staff at FPC Pensacola. I have not used my blog to take cheap shots at anyone. Sure, I occasionally tweak or make fun of a few of the staff (Arnold and "Peanut" in particular) but nothing mean-spirited. Most of them are just doing a job.
I never met the warden, although I heard a lot of negative rumors which I have NOT repeated here because I could not confirm them, and I only met the assistant warden a couple times briefly and she seemed like a nice enough lady. I don't know who the CMC is. If anyone thinks I am doing something wrong here, I haven't been told about it. My PO knows about my blog and doesn't have a problem with it.
I have reserved most of my criticisms for the justice system that put many of these guys in prison. These are criticisms that many COs and prison staff will agree with. In fact, a case worker told me in a conversation just before I left: "We have the greatest country in the world but the worst justice system." People who work within the system (judges, probation officers, defense lawyers, BOP staff) all know that what I am saying is true. It is only people on the outside who have no clue and I think it is very important that they understand the reality of the situation.
The letter included a complaint which I will repeat here because it was a common complaint I heard:
BOP has an Administrative Remedy Program (Program Statement 1330.13) which "provides every inmate the opportunity to seek formal review of a grievance concerning virtually any aspect of his or her confinement, should informal procedures not achieve resolution." The formal forms are BP-9, BP-10, and BP-11, each one representating an escalation to the next level within BOP, with BP-9 being the warden of the prison I believe.
A BP-8.5 is a semi-official form called a "copout." I can't find official reference to the number "8.5" anywhere so, while I heard the term a lot in prison, I think it is an unofficial term referring to the raising of an issue with the appropriate staff person (usually your case manager) in the hopes of resolving the issue before initiating a formal grievance which BOP staffers HATE. The next step would be filing BP-9 with the warden.
The issue of overcrowding in Dorms B and C existed when I was there. 6 bunk beds (12 men) lived in rooms approximately 12'x20' as I recall, which comes out to 20 sq ft per inmate. I was told that these rooms used to only have 4 bunk beds (8 men) which would come out to 30 sq ft per inmate.
I have done a little research. According to BOP Program Statement 1060.11, the "rated capacity [of of a dorm room in a minimum security prison] is computed by dividing the total space of each sleeping area or unit by 45 square feet." (See Paragraph 7.c.(4)(b)) If this is true, then a 12'x20' room is 240 sq ft. Divided by 45 gives 5.33. Rounding up gives 6. Therefore it appears the rooms are only rated for 6 inmates and in fact there are 12 assigned to each room.
It appears my anonymous friend is correct, based on my reading of the Program Statement.
As for the windows being blocked, the two bunk beds in the middle of the room DO partially block one or both of the two windows in each room. In addition, a short locker is usually located below the window. While not blocking the window, it would restrict access to the window if you needed to escape, although I am not sure a window is considered a legitimate fire escape. You would have to jump from a second or third floor window. In some cases you would be able to jump onto the roof or canopy of an adjacent one-story annex below. The official fire escapes are the two doors at each end of the dorm (the primary doors and stairs a located in the front middle of the dorm -- see map at bottom of the page).
The reason he mentioned the Navy Fire Chief is because Pensacola FPC is located at Saufley Field, part of the Pensacola Naval Air Station. The buildings are subject to Navy regulations as well as BOP regulations. (That is why HIV-positive inmates are not allowed... it is a Naval, not BOP, restriction.)
As for the remedy, I don't know the answer. In other words, what if this guy wins his complaint? What happens next?
It's not like the warden can do a whole lot about it. I'm sure ALL the staff know they are overcrowded but what do you do when BOP sends them to you.
If you are an inmate in an overcrowded camp, would you prefer to go to a higher security prison that isn't overcrowded??? I don't think so (and I suspect, my "friend" would not be happy if BOP's solution was to put him in a "real" prison -- be careful what you ask for, you might get it!). I would take an overcrowded "camp" over an undercrowded "medium" or "low" any time.
In county and state jails, inmates are oftentimes released due to overcrowding but, as a statutory matter, I don't think early release is a possibility for federal inmates, although perhaps release to home confinement or halfway house might be an option (although I've heard halfway houses are overcrowded also).
If I find out any more about how this gets resolved, I'll let you know.
I just thought I'd let you know that I am aware of your web site and support it. There are a lot of people here who do. Three that don't particularly like it are the warden, the A.W. [Assistant Warden], and the C.M.C. [Case Management Coordinator I think].Hmmm....
First, there were some guys there who knew I was writing a blog and, from what I could tell, it made them nervous. They didn't trust me and thought I was just going to get guys in trouble. I even had one inmate tell me I was dangerous. Typical inmate paranoia.
However, several guys have since reported to Pensacola after reading my blog so maybe they passed the word that my blog was ok.
Second, as for the warden, assistant warden and CMC not liking it, I don't know why. Maybe just typical BOP paranoia! They just don't like having the light shined (?) on their prison. They are used to being in control and hate losing it. Welcome to the club!!
I think I have been very fair to BOP and the staff at FPC Pensacola. I have not used my blog to take cheap shots at anyone. Sure, I occasionally tweak or make fun of a few of the staff (Arnold and "Peanut" in particular) but nothing mean-spirited. Most of them are just doing a job.
I never met the warden, although I heard a lot of negative rumors which I have NOT repeated here because I could not confirm them, and I only met the assistant warden a couple times briefly and she seemed like a nice enough lady. I don't know who the CMC is. If anyone thinks I am doing something wrong here, I haven't been told about it. My PO knows about my blog and doesn't have a problem with it.
I have reserved most of my criticisms for the justice system that put many of these guys in prison. These are criticisms that many COs and prison staff will agree with. In fact, a case worker told me in a conversation just before I left: "We have the greatest country in the world but the worst justice system." People who work within the system (judges, probation officers, defense lawyers, BOP staff) all know that what I am saying is true. It is only people on the outside who have no clue and I think it is very important that they understand the reality of the situation.
The letter included a complaint which I will repeat here because it was a common complaint I heard:
There are some things going on that I thought might interest you. I've filed a BP 8.5 against the admin here. As you know (or you may not have known) the rooms in Dorms B and C are way overcrowded by law. The BOPs Program Statement says we are to be allowed 45 sq ft per inmate in rooms in a camp. Here at Saufley we have about 23 sq ft. They are right at double occupancy.A little background is in order.
The windows are blocked by beds and lockers which is a fire escape. I've also considered writing the navy fire chief and asking why he is allowing this. There is nowhere else in teh BOP with this problem. Even A and D dorms are not overcrowded.
BOP has an Administrative Remedy Program (Program Statement 1330.13) which "provides every inmate the opportunity to seek formal review of a grievance concerning virtually any aspect of his or her confinement, should informal procedures not achieve resolution." The formal forms are BP-9, BP-10, and BP-11, each one representating an escalation to the next level within BOP, with BP-9 being the warden of the prison I believe.
A BP-8.5 is a semi-official form called a "copout." I can't find official reference to the number "8.5" anywhere so, while I heard the term a lot in prison, I think it is an unofficial term referring to the raising of an issue with the appropriate staff person (usually your case manager) in the hopes of resolving the issue before initiating a formal grievance which BOP staffers HATE. The next step would be filing BP-9 with the warden.
The issue of overcrowding in Dorms B and C existed when I was there. 6 bunk beds (12 men) lived in rooms approximately 12'x20' as I recall, which comes out to 20 sq ft per inmate. I was told that these rooms used to only have 4 bunk beds (8 men) which would come out to 30 sq ft per inmate.
I have done a little research. According to BOP Program Statement 1060.11, the "rated capacity [of of a dorm room in a minimum security prison] is computed by dividing the total space of each sleeping area or unit by 45 square feet." (See Paragraph 7.c.(4)(b)) If this is true, then a 12'x20' room is 240 sq ft. Divided by 45 gives 5.33. Rounding up gives 6. Therefore it appears the rooms are only rated for 6 inmates and in fact there are 12 assigned to each room.
It appears my anonymous friend is correct, based on my reading of the Program Statement.
As for the windows being blocked, the two bunk beds in the middle of the room DO partially block one or both of the two windows in each room. In addition, a short locker is usually located below the window. While not blocking the window, it would restrict access to the window if you needed to escape, although I am not sure a window is considered a legitimate fire escape. You would have to jump from a second or third floor window. In some cases you would be able to jump onto the roof or canopy of an adjacent one-story annex below. The official fire escapes are the two doors at each end of the dorm (the primary doors and stairs a located in the front middle of the dorm -- see map at bottom of the page).
The reason he mentioned the Navy Fire Chief is because Pensacola FPC is located at Saufley Field, part of the Pensacola Naval Air Station. The buildings are subject to Navy regulations as well as BOP regulations. (That is why HIV-positive inmates are not allowed... it is a Naval, not BOP, restriction.)
As for the remedy, I don't know the answer. In other words, what if this guy wins his complaint? What happens next?
It's not like the warden can do a whole lot about it. I'm sure ALL the staff know they are overcrowded but what do you do when BOP sends them to you.
If you are an inmate in an overcrowded camp, would you prefer to go to a higher security prison that isn't overcrowded??? I don't think so (and I suspect, my "friend" would not be happy if BOP's solution was to put him in a "real" prison -- be careful what you ask for, you might get it!). I would take an overcrowded "camp" over an undercrowded "medium" or "low" any time.
In county and state jails, inmates are oftentimes released due to overcrowding but, as a statutory matter, I don't think early release is a possibility for federal inmates, although perhaps release to home confinement or halfway house might be an option (although I've heard halfway houses are overcrowded also).
If I find out any more about how this gets resolved, I'll let you know.
Craig Giles Letters from Prison
I know it's been a while... I hate that.
There was a recent article on cnn.com that included letters from a Craig Giles who is spending 9 months at the camp in Jesup, GA. (When I left Pensacola almost a year ago, the warden was splitting time between Jesup and Pensacola. At least that is what I was told the reason was he wasn't around very often.)
You can read excerts at
http://money.cnn.com/2008/06/02/news/newsmakers/morris_gile_letters.fortune/
For those who have read my blog, you will notice a pattern of familiar themes about prison life and the inequities in the federal justice system, especially as they pertain to the unbelievably harsh sentences of first-time, non-violent drug offenders.
His last letter to his wife:
"It'll be interesting to see if I've changed at all when I leave here. Besides the inability to walk. In a weird way, I think I may come out of here more confident. I will certainly be less concerned about what people think of me. . . .I know I'll still suck at golf. "
I made a similar comment at one time about confidence and I think it is true. I certainly don't care as much what people think of me.
However, my golf game actually was better when I got out. I'm down to a 7 handicap... woo, hoo!
There was a recent article on cnn.com that included letters from a Craig Giles who is spending 9 months at the camp in Jesup, GA. (When I left Pensacola almost a year ago, the warden was splitting time between Jesup and Pensacola. At least that is what I was told the reason was he wasn't around very often.)
You can read excerts at
http://money.cnn.com/2008/06/02/news/newsmakers/morris_gile_letters.fortune/
For those who have read my blog, you will notice a pattern of familiar themes about prison life and the inequities in the federal justice system, especially as they pertain to the unbelievably harsh sentences of first-time, non-violent drug offenders.
His last letter to his wife:
"It'll be interesting to see if I've changed at all when I leave here. Besides the inability to walk. In a weird way, I think I may come out of here more confident. I will certainly be less concerned about what people think of me. . . .I know I'll still suck at golf. "
I made a similar comment at one time about confidence and I think it is true. I certainly don't care as much what people think of me.
However, my golf game actually was better when I got out. I'm down to a 7 handicap... woo, hoo!
Sunday, May 11, 2008
Telling Secrets
[I actually wrote this last August, about 6 weeks after leaving prison, when the feelings were a little more intense. I didn't post it at the time because it seemed a little incomplete but in light of the letters I continue to receive, I decided that some may benefit from it.]
Frederick Buechner, a very gifted writer, penned an autobiographical trilogy of which the last was titled Telling Secrets (see a review here). I read it a dozen years ago but was recently reminded of it in light of my current circumstances. It is a short read -- only 128 pages -- but packed with much wisdom.
Buechner poignantly, and painfully, recounts both his father's suicide and teenager daughter's life-threatening eating disorder and how it impacted his life. The theme of the book, which I find quite intriguing, can be summarized with this excerpt:
Frederick Buechner, a very gifted writer, penned an autobiographical trilogy of which the last was titled Telling Secrets (see a review here). I read it a dozen years ago but was recently reminded of it in light of my current circumstances. It is a short read -- only 128 pages -- but packed with much wisdom.
Buechner poignantly, and painfully, recounts both his father's suicide and teenager daughter's life-threatening eating disorder and how it impacted his life. The theme of the book, which I find quite intriguing, can be summarized with this excerpt:
I not only have my secrets. I am my secrets. And you are your secrets....Our trusting each other enough to share them with each other has much to do with the secret of what it is to be human.
There is also an extended passage on pp. 29-30 that goes a long way toward explaining why I blog and perhaps how those who are being ground up in the gears of the federal criminal justice system should respond to their experience :
This is all part of the story about what it has been like for the last 10 years or so to be me, and before anybody else has the chance to ask it, I will ask it myself: Who cares? What in the world could be less important thatn who I am and who my father and mother were, the mistakes I have made together with the occasional discoveries, the bad times and good times, the moments of grace.
But I talk about my life anyway because if, on the one hand, hardly anything could be less important, on the other hand, hardly anything could be more important. My story is important not because it is mine, God knows, but because if I tell it anything like right, the chances are you will recognize that in many ways it is also yours. Maybe nothing is more important than that we keep track, you and I, of these stories of who we are and where we have come from and the people we have met along the way because it is precisely through these stories in al their particularity, as I have long believed and often said, that God makes himself known to each of us most powerfully and personally. If this is true, it means that to lose track of our stories is to be profoundly impoverished not only humanly but also spiritually.
When you go to prison, you will hear "Who cares?" a lot.... maybe not literally but in so many other ways. In prison, no one wants to hear your story. The cynical proverb especially holds true in prison: Don't tell people your problems because 90% don't care and the other 10% are glad you have them.
Granted there are programs and services (and staff people) that exist to assist inmates in re-integrating into society, but as with so many things in life, the medium is the message. That is, the few words of encouragement and care are mere whispers drowned in a sea of screaming negativity ("You are invisible! You don't matter! No one cares!") that is the grist and grind of everyday prison life.
I was determined to tell my story because I refused to be invisible and based not only on the comments this blog receives but the personal emails I receive (wabaileyjr@gmail.com), I know I have not been invisible and, in fact, many have seen their story in mine.
What makes a secret a secret isn't necessarily whether certain facts are known by a lot of people but whether it is a story you wish to suppress because it is a source of shame; that is, it is not a subject that you can comfortably discuss. This doesn't mean that you should share every intimate detail of your life with anyone but that the past no longer has any power over your present and the telling of your story is no longer driven by your own insecurities but by the needs of the hearer.
Thus, closely related to the subject of telling secrets is the subject of shame. People don't tell their secrets because they are ashamed. Buechner:
We cannot undo our old mistakes or their consequences any more than we can erase old wounds that we have both suffered and inflicted, but through the power that memory gives us of thinking, feeling, imagining our way back through time we can at long last finally finish with the past in the sense of removing its power to hurt us and other people and to stunt our growth as human beings.
It is through memory that we are able to reclaim much of our lives that we have long since written off by finding that in everything that has happened to us over the years God was offering us possibilities of new life and healing which, though we may have missed them at the time, we can still choose and be brought to life by and healed by all these years later.
It is very important for those few of us (relatively speaking) who have had the "privilege" of experiencing this system I call "The Rabbit Hole" talk about our "secrets," not only because it is personally therapeutic, but because those who have not had this experience need to hear it. The system only exists because politicians, responding to what voters think they want, created it, apparently without a lot of deliberation. I am convinced that not only do ordinary citizens not understand what they have created, but neither do most politicians (until they get caught in this web of their own making!). If they did, they would demand change, at least I would hope they would.
Consider these comments from Federal Judge Carl Horn III:
While judges and an increasing number of lawyers realize we have a serious imbalance in our federal criminal system, most of the public still does not. In fact, the most often recurring comment I hear from friends or those who learn what I do for a living is some version of "Lock 'em up and throw away the key." Without putting the speaker down, my usual response begins something like, "You know, after over 15 years as a prosecutor and judge, I don't feel that way at all." Many constructive conversations have followed.
Take every opportunity to "spread the word." In addition to one-on-one communications, consider writing an opinion piece for your local paper or for your state and/or local bar publications. Write succinct letters to the editor that tell, as Paul Harvey would say, "the rest of the story" when related news is reported or opinion expressed. Accept, or even seek, opportunities to speak to civic, church, and other local clubs and groups. Appear on local television programs when invited. Little by little we must spread the word to the thinking and voting public - who, incidentally, also serve on our juries - if meaningful reform is to be achieved.
Or, perhaps this from a somewhat less distinguished source:
It is a blessing to governments, that human beings do not think for themselves.
-- Adolf Hitler
Is it just me, or is it getting a little "chilly" in here?
Wednesday, May 7, 2008
Blogging as Therapy
I love it.
http://www.cnn.com/2008/LIVING/personal/05/07/blog.therapy/index.html
Excerpts:
http://www.cnn.com/2008/LIVING/personal/05/07/blog.therapy/index.html
Excerpts:
- A 2005 survey by Digital Marketing Services for AOL.com a found nearly half of the 600 people polled derived therapeutic benefits from personal blogging. 'Instant support system'
- Writing long has been considered a therapeutic outlet for people facing problems. A 2003 British Psychological Society study of 36 people suggested that writing about emotions could even speed the healing of physical wounds: Researchers found that small wounds healed more quickly in those who wrote about traumatic personal events than in those who wrote about mundane activities.
- Blogging can create an instant support system, especially at a time when you might not have the energy or resources to seek out people who've shared your experiences," says Mason, author of "No One Cares What You Had For Lunch," a book on keeping a blog interesting.
- John Suler, a psychology professor at Rider University in New Jersey, has studied the overlap of psychology and cyberspace. Blog audiences are usually small, he says, but "going public with one's thoughts and experiences can be a self-affirming process."
Friday, April 25, 2008
Celebrity and General Deterrence
Wesley Snipes was sentenced yesterday to 3 years in prison, the maximum sentence allowed by law for his Feb 1 conviction on 3 counts of failure to file a tax return, all misdemeanors. He had been acquitted of the more serious charges of tax fraud and conspiracy (although his two co-defendants were convicted on all counts).
If you are interested in the background of the case, I encourage you to read the second link above on the TaxProf Blog. I would like to focus on the sentencing issues, in particular the role of "general deterrence."
In Federal Court, sentencing is governed by 18 U.S.C. § 3553(a), which identifies the factors to be considered in imposing a sentence. There are 7 factors but #2 is probably the most important:
These cover the classic elements of retribution (just punishment), specific deterrence (including rehabilitation and incapacitation), and general deterrence (that is, discouraging others from committing the same offense).
Of these, I think it is indisputable that the priority should be
1. Punishment -- the sentence should fit the crime
2. Specific Deterrence -- the sentence should discourage the criminal from repeating the offense. This can be accomplished by incapacitation (e.g. prison) and/or rehabilitation (changing the person).
3. General Deterrence -- the sentence should "send a message" to the community at large in the hopes of discouraging the criminal conduct.
If I had to apply percentages, I would put "punishment" at 60%, specific deterrence at 30% and general deterrence at 10%, although reasonable people can disagree with the weights.
Unfortunately, however, prosecutors completely invert this order. Indeed, the judge in the Wesley Snipes case, in ruling on an earlier motion to dismiss the case for selective prosecution, said:
Apparently, from this judge's point of view, general deterrence is the Court's primary objective in sentencing. He did not say that, but it is strongly implied. And it is completely backwards.
So this raises a very important question.... actually two of them (maybe more!):
1. What role should general deterrence play for prosecutors in selecting cases.
2. What role should general deterrence play for judges in sentencing defendants (especially if the defendant is a celebrity).
The government's sentencing memo in the Snipes case was very interesting. It is 37 pages long and I encourage you to read it all but especialy Section III (pp. 18-24) on deterrence.
(By they way, I love reading these things -- sentencing memos, court opinions, etc -- especially if they are written and argued well, which this one was, even though I fundamentally disagree with the approach taken by the prosecutors.)
The problem the prosecutors had is that Snipes had been acquitted of all the felony counts and convicted only of the three misdemeanor counts (failure to file tax returns in 3 years). The felony counts have maximum sentences of 5 years I believe (indeed one of Snipes codefendants,. who was convicted on all counts, received 10 years) but the misdemeanor counts have a maximum sentence of only 1 year each so the most the court could sentence Snipes to was 3 years despite the fact that the US Sentencing Guidelines (based on the amount of taxes Snipes did not pay) would have set his sentence to more than 10 years, according to the prosecutors. This is one of the rare cases in which the maximum sentence allowed by law is actually lower than the guideline sentence.
The prosecutors were clearly miffed at the trial outcome for Snipes and were trying to make the case for the maximum sentence given they only had 3 misdemeanor convictions to work with.
They did this in two ways:
First, they focussed on the seriousness of the offense. Certainly, relative to most convictions for misdemeanor "failure to file a tax return" offenses, this one was off the charts. I will not restate all the facts but basically Snipes appeared to underpay his taxes to the tune of several million dollars under the most generous of assumptions:
The prosecution believes the losses should however be higher for sentencing purposes if one considers other "relevant conduct:"
Acquitted conduct sentencing enhancements occur when a jury finds a defendant guilty of some counts but not guilty of others. The judge, however, in deciding to sentence a defendant can decide on his own, based on a preponderance of the evidence (a much lower standard than reasonable doubt), that even the acquitted conduct is relevant and sentence based on that.
I kid you not. Welcome to the Rabbit Hole, that strange and bizarre world of federal sentencing.
If you asked someone on the street if a defendant could be sentenced for conduct he was acquitted of, he would look at you like it was a trick question. Of course not, right? Wrong.
You could be acquitted on 9 out of 10 counts and be sentenced as if you were convicted of all, limited only by the statutory maximum for the count you were convicted of.
This subject deserves a totally separate article but for those who want to preview it themselves, check out this Strong commentary on acquitted conduct sentencing, including a reference to a great article brilliantly titled "Not guilty. Go to jail."
Nonetheless, had the prosecutors simply stuck with actual damages and the seriousness of the offense, they had a very strong argument, on that basis alone, for sentencing Snipes to the maximum.
But they did not stop there, nor did the court apparently.
They cited the "singular opportunity this case presents to deter tax crime nationwide" because this was "the most prominent tax prosecution since the 1989 trial and conviction of billionaire hotelier Leona Helmsley."
Furthermore, "(t)his case accordingly presents the Court with a momentous opportunity to instantaneously increase tax compliance on a national scale."
Other selected quotes from the government's sentencing memo:
That is the biggest argument against general deterrence in general and especially in this case: it treats the defendant differently than everyone else. Snipes is not receiving "equal justice under the law." The prosecution is all but conceding that if Snipes was just someone like you or me, then the sentence should not be as harsh.
Basically, however, in this case, they want to cut his head off and stick it on a pole to the entrance to TaxProtesterLand to let everyone know what happens to tax protesters.
This is an illegitimate application of the law and certainly an illegitimate motivation for prosecutors to select cases based on celebrity-status in order to leverage the publicity associated with that individual. (This was also a criticism I also made of the government in the Michael Vick case.. he was singled out and punished more harshly because of who he was.)
The only reason Snipes became a public face for the tax protester movement is because the government made him the public face by singling him out for prosecution, rather than some of the leaders in the movement who, unknown outside the movement, would not generate the publicity that a Snipes trial would. This was clearly a calculated strategy.
To some degree, that strategy blew up in their faces when Snipes was acquitted of the most serious charges, leaving them to pick up the pieces with this recommendation for the maximum sentence on the convicted counts.
As I have said, I think a strong argument could be made for the sentence Snipes received based solely on retribution and specific deterrence factors. However, making general deterrence the centerpiece of the argument is very troubling.
--------------------------------------------------------
By the way, I knew a tax protester in prison: Ward Dean, MD. Ward is a 65 year old man (doctor and Naval Commander) that became enamored with the tax protester movement late in life for reasons I don't totally understand.
Basic facts of his case can be found here although he has his own site that discusses his medical as well as tax beliefs and legal case in great detail. Trust me, he is not repentant. Indeed, he has all the energy of a true believer and continues to fight his case. We chatted frequently and he gave me books as well as medical advice (he is well-versed in anti-aging medicine).
He was convicted in December, 2005 and received an 88-month sentence (twice that recommended by the guidelines) in July 2006. He reported to prison in late 2006, several months before me and is not scheduled for release until 2012!!
He is a perfectly decent guy although, as I stated, definitely a true believer. He is very opinionated but slightly eccentric. He will debate anyone who will listen to him on these subjects.
Ironically, for a while, his work detail had him doing groundskeeping within eyesight of the office where he used to practice medicine as a Naval Commander! Talk about a change of circumstance.
Regardless of the merits of the tax protester movement, it takes a special person to sacrifice his liberty for a cause. I could count on one hand the issues or principles for which I would be willing to go to prison in defense of; actually, maybe on one finger.
And taking on the government over the legality of our tax code would definitely NOT be one of them!
God bless you Ward.. and good luck. I respect your determination but I'm not ready to join you as a martyr for the cause.
If you are interested in the background of the case, I encourage you to read the second link above on the TaxProf Blog. I would like to focus on the sentencing issues, in particular the role of "general deterrence."
In Federal Court, sentencing is governed by 18 U.S.C. § 3553(a), which identifies the factors to be considered in imposing a sentence. There are 7 factors but #2 is probably the most important:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
These cover the classic elements of retribution (just punishment), specific deterrence (including rehabilitation and incapacitation), and general deterrence (that is, discouraging others from committing the same offense).
Of these, I think it is indisputable that the priority should be
1. Punishment -- the sentence should fit the crime
2. Specific Deterrence -- the sentence should discourage the criminal from repeating the offense. This can be accomplished by incapacitation (e.g. prison) and/or rehabilitation (changing the person).
3. General Deterrence -- the sentence should "send a message" to the community at large in the hopes of discouraging the criminal conduct.
If I had to apply percentages, I would put "punishment" at 60%, specific deterrence at 30% and general deterrence at 10%, although reasonable people can disagree with the weights.
Unfortunately, however, prosecutors completely invert this order. Indeed, the judge in the Wesley Snipes case, in ruling on an earlier motion to dismiss the case for selective prosecution, said:
From a prosecutor's point of view, especially in tax cases, the primary objective in deciding whom to prosecute is to achieve general deterrence.I find this very disturbing. While I understand that, "especially in tax cases," general deterrence may play a slightly stronger role, this judge is suggesting that general deterrence is the primary objective in all cases (but especially in tax cases) for a prosecutor.
Apparently, from this judge's point of view, general deterrence is the Court's primary objective in sentencing. He did not say that, but it is strongly implied. And it is completely backwards.
So this raises a very important question.... actually two of them (maybe more!):
1. What role should general deterrence play for prosecutors in selecting cases.
2. What role should general deterrence play for judges in sentencing defendants (especially if the defendant is a celebrity).
The government's sentencing memo in the Snipes case was very interesting. It is 37 pages long and I encourage you to read it all but especialy Section III (pp. 18-24) on deterrence.
(By they way, I love reading these things -- sentencing memos, court opinions, etc -- especially if they are written and argued well, which this one was, even though I fundamentally disagree with the approach taken by the prosecutors.)
The problem the prosecutors had is that Snipes had been acquitted of all the felony counts and convicted only of the three misdemeanor counts (failure to file tax returns in 3 years). The felony counts have maximum sentences of 5 years I believe (indeed one of Snipes codefendants,. who was convicted on all counts, received 10 years) but the misdemeanor counts have a maximum sentence of only 1 year each so the most the court could sentence Snipes to was 3 years despite the fact that the US Sentencing Guidelines (based on the amount of taxes Snipes did not pay) would have set his sentence to more than 10 years, according to the prosecutors. This is one of the rare cases in which the maximum sentence allowed by law is actually lower than the guideline sentence.
The prosecutors were clearly miffed at the trial outcome for Snipes and were trying to make the case for the maximum sentence given they only had 3 misdemeanor convictions to work with.
They did this in two ways:
This case cries out for the statutory maximum term of imprisonment, as well as a substantial fine, because of the seriousness of defendant Snipes’ crimes and because of the singular opportunity this case presents to deter tax crime nationwide.
First, they focussed on the seriousness of the offense. Certainly, relative to most convictions for misdemeanor "failure to file a tax return" offenses, this one was off the charts. I will not restate all the facts but basically Snipes appeared to underpay his taxes to the tune of several million dollars under the most generous of assumptions:
Even if one considers solely the actual tax loss associated with the counts ofThe guidelines would call for a sentence of 47-63 months at this level of "loss."
conviction, and excludes both the actual and intended loss from relevant conduct, the tax loss for which Snipes is responsible, solely by virtue of the jury's verdict on the three counts of conviction, is several million dollars.
The prosecution believes the losses should however be higher for sentencing purposes if one considers other "relevant conduct:"
For sentencing purposes, the Court is entitled to consider such relevant conduct as it finds by a preponderance of the evidence, even when related to acquitted conduct.What this means is that the court can consider other conduct related to the convicted offenses in determining damages or make other sentencing enhancement choices, even if it involves conduct that the jury acquited.
Acquitted conduct sentencing enhancements occur when a jury finds a defendant guilty of some counts but not guilty of others. The judge, however, in deciding to sentence a defendant can decide on his own, based on a preponderance of the evidence (a much lower standard than reasonable doubt), that even the acquitted conduct is relevant and sentence based on that.
I kid you not. Welcome to the Rabbit Hole, that strange and bizarre world of federal sentencing.
If you asked someone on the street if a defendant could be sentenced for conduct he was acquitted of, he would look at you like it was a trick question. Of course not, right? Wrong.
You could be acquitted on 9 out of 10 counts and be sentenced as if you were convicted of all, limited only by the statutory maximum for the count you were convicted of.
This subject deserves a totally separate article but for those who want to preview it themselves, check out this Strong commentary on acquitted conduct sentencing, including a reference to a great article brilliantly titled "Not guilty. Go to jail."
Nonetheless, had the prosecutors simply stuck with actual damages and the seriousness of the offense, they had a very strong argument, on that basis alone, for sentencing Snipes to the maximum.
But they did not stop there, nor did the court apparently.
They cited the "singular opportunity this case presents to deter tax crime nationwide" because this was "the most prominent tax prosecution since the 1989 trial and conviction of billionaire hotelier Leona Helmsley."
Furthermore, "(t)his case accordingly presents the Court with a momentous opportunity to instantaneously increase tax compliance on a national scale."
Other selected quotes from the government's sentencing memo:
The fact that Snipes was acquitted on two felony charges and convicted “only” on three misdemeanor counts has been portrayed in the mainstream media as a "victory" for Snipes.In effect, the government argues that Snipes should be especially punished because he is a celebrity and because of press coverage and public perceptions over which he has no control.
The troubling implication of such coverage for the millions of average citizens who are aware of this case is that the rich and famous Wesley Snipes has “gotten away with it.” In the end, the criminal conduct of Snipes must not be seen in such a light, or else general deterrence -- “the effort to discourage similar wrongdoing by others through a reminder that the law's warnings are real and that the grim consequence of imprisonment is likely to follow” -- will not be achieved.
Snipes’ acquittal on the tax conspiracy and false claim counts has been perceived in those circles as a vindication of anti-tax theories and a "win" that will attract additional converts into their movement.
There is, unfortunately, a profound need to discourage others from emulating Snipes' criminal tactics against the IRS.
General deterrence in this case depends upon the public seeing some consequence for Snipes beyond a vague promise to make amends with the IRS.
That is the biggest argument against general deterrence in general and especially in this case: it treats the defendant differently than everyone else. Snipes is not receiving "equal justice under the law." The prosecution is all but conceding that if Snipes was just someone like you or me, then the sentence should not be as harsh.
Basically, however, in this case, they want to cut his head off and stick it on a pole to the entrance to TaxProtesterLand to let everyone know what happens to tax protesters.
This is an illegitimate application of the law and certainly an illegitimate motivation for prosecutors to select cases based on celebrity-status in order to leverage the publicity associated with that individual. (This was also a criticism I also made of the government in the Michael Vick case.. he was singled out and punished more harshly because of who he was.)
The only reason Snipes became a public face for the tax protester movement is because the government made him the public face by singling him out for prosecution, rather than some of the leaders in the movement who, unknown outside the movement, would not generate the publicity that a Snipes trial would. This was clearly a calculated strategy.
To some degree, that strategy blew up in their faces when Snipes was acquitted of the most serious charges, leaving them to pick up the pieces with this recommendation for the maximum sentence on the convicted counts.
As I have said, I think a strong argument could be made for the sentence Snipes received based solely on retribution and specific deterrence factors. However, making general deterrence the centerpiece of the argument is very troubling.
--------------------------------------------------------
By the way, I knew a tax protester in prison: Ward Dean, MD. Ward is a 65 year old man (doctor and Naval Commander) that became enamored with the tax protester movement late in life for reasons I don't totally understand.
Basic facts of his case can be found here although he has his own site that discusses his medical as well as tax beliefs and legal case in great detail. Trust me, he is not repentant. Indeed, he has all the energy of a true believer and continues to fight his case. We chatted frequently and he gave me books as well as medical advice (he is well-versed in anti-aging medicine).
He was convicted in December, 2005 and received an 88-month sentence (twice that recommended by the guidelines) in July 2006. He reported to prison in late 2006, several months before me and is not scheduled for release until 2012!!
He is a perfectly decent guy although, as I stated, definitely a true believer. He is very opinionated but slightly eccentric. He will debate anyone who will listen to him on these subjects.
Ironically, for a while, his work detail had him doing groundskeeping within eyesight of the office where he used to practice medicine as a Naval Commander! Talk about a change of circumstance.
Regardless of the merits of the tax protester movement, it takes a special person to sacrifice his liberty for a cause. I could count on one hand the issues or principles for which I would be willing to go to prison in defense of; actually, maybe on one finger.
And taking on the government over the legality of our tax code would definitely NOT be one of them!
God bless you Ward.. and good luck. I respect your determination but I'm not ready to join you as a martyr for the cause.
Wednesday, April 23, 2008
"Pled" or "Pleaded"
I finally couldn't stand it any longer.
In my various readings, I have noticed that the past tense of "plead" has been rendered as either "pled" or "pleaded", as in "John 'pled' guilty" or "John 'pleaded' guilty".
So, having nothing else to do (NOT!), I decided to research the matter.
I found the following on the GrammarPhobia Blog:
Merriam-Webster seems to agree.
Now I can sleep peacefully again.
In my various readings, I have noticed that the past tense of "plead" has been rendered as either "pled" or "pleaded", as in "John 'pled' guilty" or "John 'pleaded' guilty".
So, having nothing else to do (NOT!), I decided to research the matter.
I found the following on the GrammarPhobia Blog:
Q: When I was growing up and a person accused of a crime proclaimed his
innocence or acknowledged his guilt, it was always stated that he "pled" guilty or innocent. Now I hear poeple say he "pleaded" guilty or innocent. When did the change occur? My tongue has to take the Fifth when pushed to speak that word.A: American dictionaries generally list both "pleaded" and "pled" (in that order) as past tenses for the verb "plead." So you can say a scofflaw "pleaded guilty" or "pled guilty" and be correct either way, though the first is the more common form. Bryan A. Garner's Dictionary of Modern American Usage also says that "pleaded" is the predominant form in both American and British English. But in legal terminology, "pled" is a common variant in the U.S. (not in Britain). So it's quite common to say of an American perp that he "pled guilty" or "has pled guilty." Since "pled" dates from the 16th century (even though it's now all but obsolete in England), there's no reason you shouldn't stick to it if that's your preference.
Merriam-Webster seems to agree.
Now I can sleep peacefully again.
Tuesday, April 22, 2008
Inmate Count in U.S. Dwarfs Other Nations'
The NY Times published the following article in today's edition. It begins:
Fascinating.
Five years ago... I might have said "Too bad for the rest of the world."
Today... I'm tempted to move to another country.
I liked the term "producing prisoners." Actually we "produce criminals." I believe I have read that only 10% of federal prisoners committed crimes of violence. Just over 50% are drug offenders. Certainly white collar offenders are non-violent and many of them were convicted of "derivative" crimes, which are sort of phantom crimes like mail fraud, money laundering, and wire fraud, in which otherwise harmless conduct is criminalized due to its relationship to a substantive crime which itself is not typically even a federal offense and may even be a state misdemeanor.
In particular, I found this excerpt interesting:
Please read this article and post comments. I am curious which parts people find interesting.
The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.
Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.
Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.
Fascinating.
Five years ago... I might have said "Too bad for the rest of the world."
Today... I'm tempted to move to another country.
I liked the term "producing prisoners." Actually we "produce criminals." I believe I have read that only 10% of federal prisoners committed crimes of violence. Just over 50% are drug offenders. Certainly white collar offenders are non-violent and many of them were convicted of "derivative" crimes, which are sort of phantom crimes like mail fraud, money laundering, and wire fraud, in which otherwise harmless conduct is criminalized due to its relationship to a substantive crime which itself is not typically even a federal offense and may even be a state misdemeanor.
In particular, I found this excerpt interesting:
It used to be that Europeans came to the United States to study its prison systems. They came away impressed. “In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”
No more.
“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research. “Certainly there are no European governments sending delegations to learn from us about how to manage prisons.”
Please read this article and post comments. I am curious which parts people find interesting.
Prison Talk Fund Raiser
I received the following email from Prison Talk, an online forum for friends and families of inmates that I have referred to in the past. They are attempting to raise funds to increase their technical infrastructure and upgrade their features.
The letter I received is as follows. I encourage anyone interested to please contribute. I will be donating $100.
Dear PTO Member,
PTO has been a wonderful place for friendship, understanding and support for over 6 years. We all have the common bond of having a connection to the prison system, whether it is having a loved one, pen pal or friend in prison, or just an interest in human rights and wanting to know more about the criminal justice systems.
PTO does not charge for membership or access to the site and we intend to continue in that tradition. At times however we need to raise funds in order to maintain and expand PTO.
With the near completion of the forum upgrade, live chat room, the addition of new features such as blogs, member albums, photo galleries, customizable member profiles (etc), we now are focusing on the graphics upgrade and adding new servers to handle the additional and growing loads required to host PrisonTalk.com.
While the server we purchased two years ago has done well for us, we have outgrown it. We are currently running at load levels that leave little “room for error” or to grow and it is becoming more problematic each month. Page load times have been slowing down, and when the system has a “hiccup”, we have to jump in and address it much more than we would if it had more resources available.
We have spent quite a bit of time talking to our server admin and a number of other professionals to determine exactly what equipment we need to give us optimum performance for the most reasonable amount of money. The setup we have come up with is to add two additional new servers to our existing server.
We realize that not everyone is in a position to contribute to the fund raiser and we want to assure you that your experience on PTO will not change. Every feature around the site that you currently have access to will remain the same and PTO will always remain free to access! For those who are interested and able to contribute to the fund raiser, you will have a few new enhanced features once the upgrade is completed. You can find full details of this here:
http://www.prisontalk.com/forums/showthread.php?t=331563
All PTO members who contribute to this years fund raiser will be recognized by having an "award" icon placed in their post bit, as well as included in the Donation List. For full details on this, please see this thread: http://www.prisontalk.com/forums/showthread.php?t=331725
How To Donate to PTO:
If you are interested and able to donate to the PTO Fund Raiser, you can do so either via PayPal / Credit Card or by mailing in a check, money order, etc.
If you want to use the PayPal or Credit Card option we ask you to please use the automated system located at PrisonTalk.com so that your contribution will instantly be recorded into the system and we will know who you are so we can recognize your contribution.
You can access the system either by clicking on the “Donation” Option in the Navigation bar in the forums, or you can access the donation page by clicking on this link:
http://www.prisontalk.com/forums/awc_ds.php?do=donation
If you prefer to mail in your contribution, please be sure and include your PTO User Name along with the donation. If you would prefer your name and/or the amount to be anonymous, please specify this.
Contributions should be made payable to: PrisonTalk.com, and mailed to the following address:
PrisonTalk.com
P.O. Box 644
Sugar Land, TX. 77487-0644
--------------------------------
If you are interested in learning more about the equipment we plan to purchase, the costs associated with the upgrade and other details, you may view them and comment in the following thread:
http://www.prisontalk.com/forums/showthread.php?t=331568
If you would like to know more about What’s New at PTO, please visit the PTO Site News & Information forum located here: http://www.prisontalk.com/forums/forumdisplay.php?f=33
If you have any questions, comments or would like to know more about PTO's fund raiser, please visit the following forum dedicated to it:
http://www.prisontalk.com/forums/forumdisplay.php?f=1049
Thanks for taking the time to read this email and we will see you at PTO!
The letter I received is as follows. I encourage anyone interested to please contribute. I will be donating $100.
Dear PTO Member,
PTO has been a wonderful place for friendship, understanding and support for over 6 years. We all have the common bond of having a connection to the prison system, whether it is having a loved one, pen pal or friend in prison, or just an interest in human rights and wanting to know more about the criminal justice systems.
PTO does not charge for membership or access to the site and we intend to continue in that tradition. At times however we need to raise funds in order to maintain and expand PTO.
With the near completion of the forum upgrade, live chat room, the addition of new features such as blogs, member albums, photo galleries, customizable member profiles (etc), we now are focusing on the graphics upgrade and adding new servers to handle the additional and growing loads required to host PrisonTalk.com.
While the server we purchased two years ago has done well for us, we have outgrown it. We are currently running at load levels that leave little “room for error” or to grow and it is becoming more problematic each month. Page load times have been slowing down, and when the system has a “hiccup”, we have to jump in and address it much more than we would if it had more resources available.
We have spent quite a bit of time talking to our server admin and a number of other professionals to determine exactly what equipment we need to give us optimum performance for the most reasonable amount of money. The setup we have come up with is to add two additional new servers to our existing server.
We realize that not everyone is in a position to contribute to the fund raiser and we want to assure you that your experience on PTO will not change. Every feature around the site that you currently have access to will remain the same and PTO will always remain free to access! For those who are interested and able to contribute to the fund raiser, you will have a few new enhanced features once the upgrade is completed. You can find full details of this here:
http://www.prisontalk.com/forums/showthread.php?t=331563
All PTO members who contribute to this years fund raiser will be recognized by having an "award" icon placed in their post bit, as well as included in the Donation List. For full details on this, please see this thread: http://www.prisontalk.com/forums/showthread.php?t=331725
How To Donate to PTO:
If you are interested and able to donate to the PTO Fund Raiser, you can do so either via PayPal / Credit Card or by mailing in a check, money order, etc.
If you want to use the PayPal or Credit Card option we ask you to please use the automated system located at PrisonTalk.com so that your contribution will instantly be recorded into the system and we will know who you are so we can recognize your contribution.
You can access the system either by clicking on the “Donation” Option in the Navigation bar in the forums, or you can access the donation page by clicking on this link:
http://www.prisontalk.com/forums/awc_ds.php?do=donation
If you prefer to mail in your contribution, please be sure and include your PTO User Name along with the donation. If you would prefer your name and/or the amount to be anonymous, please specify this.
Contributions should be made payable to: PrisonTalk.com, and mailed to the following address:
PrisonTalk.com
P.O. Box 644
Sugar Land, TX. 77487-0644
--------------------------------
If you are interested in learning more about the equipment we plan to purchase, the costs associated with the upgrade and other details, you may view them and comment in the following thread:
http://www.prisontalk.com/forums/showthread.php?t=331568
If you would like to know more about What’s New at PTO, please visit the PTO Site News & Information forum located here: http://www.prisontalk.com/forums/forumdisplay.php?f=33
If you have any questions, comments or would like to know more about PTO's fund raiser, please visit the following forum dedicated to it:
http://www.prisontalk.com/forums/forumdisplay.php?f=1049
Thanks for taking the time to read this email and we will see you at PTO!
Paul Jones and Conditions at FPC Pensacola
A reader posted a comment to my earlier post and provided a link to the following article describing the conditions for one Paul Jones at FPC Pensacola:
Paul Jones Still Prima Donna in Prison
The account of conditions at Pensacola were pretty much "spot on" except we made 12 cents/hour, not 11!!
It was slightly overcrowded. They had to convert a couple of TV rooms into separate dorm rooms. Obviously, for more detailed (and nuanced) descriptions of the conditions, you'll have to read the various articles in my blog that I posted while I was there.
(By the way, I can only shake my head at the tone of this article and the cold, heartless, ignorant comments that people make about someone they no nothing about. It is just amazing how the media just jumps on a story like this and literally crucifies an individual.)
Ironically, I knew Paul in prison for a couple of months. He reported on May 9, 2007 (5-6 weeks after me) and is due to be released July 5, 2008. He received a 16 month sentence of which he will serve 14 months with standard good-time credit of 15%. The last 1.4 months will be served in a halfway house, which means he should be released from Pensacola FPC in about a month. (I believe his family has moved to Bradenton, Florida from Ohio so he should be relocated there.)
Unfortunately, he was also convicted in state court and, in an unusual move, the judge ruled he must serve his 14 month sentence after he completes his federal sentence. Normally, the state will allow a defendant to serve his state sentence concurrent with an existing federal sentence, especially if the charges arise from the same conduct. Jones had already been sentenced to 16 months on the federal charges when he pleaded guilty in state court. (By the way, it is more common for a federal court to issue a consecutive sentence on top of a state sentence -- otherwise they wouldn't even bother with the case if they think justice has already been done at the state level.)
For a complete summary of his case, read this article.
You can also read details of the charges in the DOJ Press Release announcing his sentence.
In an effort to balance the scales a little to humanize Paul's situation, permit me to fill in a few personal details without, hopefully, compromising his privacy.
Basically, Paul was a career politician. He was mayor of Ravenna, Ohio in the late 70s, then 6 term state legislator before returning as mayor in the late 90s.
As I said, I knew Paul casually for a couple months. As is common among inmates, especially white collar inmates, we discuss our respective cases.
Paul was a perfectly pleasant guy. He is smaller than you might imagine... maybe 5'8" or 5'9".
The first thing you notice is his slightly unusual appearance, which may be typical of all career politicians! His hair looked like it had been sprayed on -- it was always perfect -- and had been tinted a reddish-blond color. Both of these conditions changed over the short time I knew him as his hair began to return to a darker color and didn't always look so "perfect" (although by prison standards he looked just fine!).
The second thing you notice is his tanned face... it almost had an orange tint to it, as if it had been sprayed on also -- something you don't see in prison everyday either, obviously. My guess is that has gone away in the last year.
So, based on appearance alone, Paul sort of stood out initially. Basically, he looked like a movie star.... or maybe a caricature of a movie star.
Having said that, he was a perfectly decent guy. He didn't come across as a prima donna -- as the article called him -- in prison (although I can understand how someone in politics as long as he could create such an impression).
Politians do not make a lot of money (at least not as politicians -- even Bill Clinton didn't make much in Arkansas or, for that matter, as President, which is why so many politicians must be rich, or marry rich, before going into politics). Paul's son had received admission to Harvard, but they could not afford the tuition. He helped his son set up a lawn care business that made enough money to help put his son through college. One of the clients, however, was a non-profit community develoment organization that receives federal funds channeled through the city. Technically, this was an organization that Paul had potential political influence over, which, again technically, creates a conflict of interest.
While the lawn business was a sole proprietorship in his son's name, Paul helped run it while his son was away and also filed the tax returns, which is where he got in trouble.
Apparently, he did not keep very good records, and "neglected" to report approximately $162,000 in revenue over a 3 year period, thereby depriving the IRS of about $50K in taxes. I believe an audit of one of his large clients revealed that they had paid his lawn business a lot of money and further investigation revealed that Paul had not reported it.
Did he do it on purpose? I don't know, but it is obviously a lot of money to not keep track of.
This is where politics enters in. If this had been you or me, the IRS would probably have simply required you to report the additional revenue and pay the missing $50K with additional penalties and interest.
But Paul was a former legislator and mayor. Over 25 years, you create political enemies who are prepared to bury you at the first opportunity. And he certainly gave them that opportunity.
He was charged with tax fraud. A little strong in my opinion but not out of bounds. Fair enough.
But he was also charged with mail fraud.
Mail fraud?
Yes, as a state politician, he is required to file financial disclosure forms. His disclosure forms likewise did not reveal the additional income that he failed to report on his taxes. Normally, this is a state misdemeanor and a small fine.
However, and this illustrates the absolute lunacy of federal law, he dropped the form in the mail rather than hand-delivering. Therefore, by using the mail to commit a crime (filing a false financial disclosure form), even a "crime" as minor as a state misdemeanor, his offense is now a federal felony. Thus, a mail fraud count -- based entirely on mailing an inaccurate state ethics form -- was added to "jack up" his sentence.
(Sometimes, a mail fraud count is added to a tax fraud simply because the tax return was mailed in.)
Furthermore, if he did not accept the plea deal, the feds threatened to indict his son for tax fraud since his sone was technically the owner of the business (threatening to indict family members, no matter how peripherally involved, is a common tactic federal prosecutors use to coerce plea deals). His son had completed law school and would not have been able to sit for the bar while under indictment. Had his son been convicted, good-bye law career.
Therefore, Paul fell on his sword and took the plea deal. (What would YOU do?) That's the way the system works. No matter how much you want to fight the charges and tell your side of the story, the system will not let you unless you are willing to pay an unbelievably huge personal price if you lose. (And, even if you win, you lose because the process will bankrupt you and destroy your life emotionally.)
His plea deal was for 12-18 months. Normally, you get the low end of the scale as a first offender. The judge gave him 16. Nice.
Did Paul probably break the tax laws? Sure.
Did the system exploit his mistake and absolutely bury him to the maximum extent allowed by the law, moreso than what it would have done for a non-public person? I have no doubt that it did.
Did politics play a role? You tell me.
25-30 years of public service of any otherwise good man flushed down the toilet.
That, my friends, as Paul Harvey would say, is the rest of the story.
Paul Jones Still Prima Donna in Prison
The account of conditions at Pensacola were pretty much "spot on" except we made 12 cents/hour, not 11!!
It was slightly overcrowded. They had to convert a couple of TV rooms into separate dorm rooms. Obviously, for more detailed (and nuanced) descriptions of the conditions, you'll have to read the various articles in my blog that I posted while I was there.
(By the way, I can only shake my head at the tone of this article and the cold, heartless, ignorant comments that people make about someone they no nothing about. It is just amazing how the media just jumps on a story like this and literally crucifies an individual.)
Ironically, I knew Paul in prison for a couple of months. He reported on May 9, 2007 (5-6 weeks after me) and is due to be released July 5, 2008. He received a 16 month sentence of which he will serve 14 months with standard good-time credit of 15%. The last 1.4 months will be served in a halfway house, which means he should be released from Pensacola FPC in about a month. (I believe his family has moved to Bradenton, Florida from Ohio so he should be relocated there.)
Unfortunately, he was also convicted in state court and, in an unusual move, the judge ruled he must serve his 14 month sentence after he completes his federal sentence. Normally, the state will allow a defendant to serve his state sentence concurrent with an existing federal sentence, especially if the charges arise from the same conduct. Jones had already been sentenced to 16 months on the federal charges when he pleaded guilty in state court. (By the way, it is more common for a federal court to issue a consecutive sentence on top of a state sentence -- otherwise they wouldn't even bother with the case if they think justice has already been done at the state level.)
For a complete summary of his case, read this article.
You can also read details of the charges in the DOJ Press Release announcing his sentence.
In an effort to balance the scales a little to humanize Paul's situation, permit me to fill in a few personal details without, hopefully, compromising his privacy.
Basically, Paul was a career politician. He was mayor of Ravenna, Ohio in the late 70s, then 6 term state legislator before returning as mayor in the late 90s.
As I said, I knew Paul casually for a couple months. As is common among inmates, especially white collar inmates, we discuss our respective cases.
Paul was a perfectly pleasant guy. He is smaller than you might imagine... maybe 5'8" or 5'9".
The first thing you notice is his slightly unusual appearance, which may be typical of all career politicians! His hair looked like it had been sprayed on -- it was always perfect -- and had been tinted a reddish-blond color. Both of these conditions changed over the short time I knew him as his hair began to return to a darker color and didn't always look so "perfect" (although by prison standards he looked just fine!).
The second thing you notice is his tanned face... it almost had an orange tint to it, as if it had been sprayed on also -- something you don't see in prison everyday either, obviously. My guess is that has gone away in the last year.
So, based on appearance alone, Paul sort of stood out initially. Basically, he looked like a movie star.... or maybe a caricature of a movie star.
Having said that, he was a perfectly decent guy. He didn't come across as a prima donna -- as the article called him -- in prison (although I can understand how someone in politics as long as he could create such an impression).
Politians do not make a lot of money (at least not as politicians -- even Bill Clinton didn't make much in Arkansas or, for that matter, as President, which is why so many politicians must be rich, or marry rich, before going into politics). Paul's son had received admission to Harvard, but they could not afford the tuition. He helped his son set up a lawn care business that made enough money to help put his son through college. One of the clients, however, was a non-profit community develoment organization that receives federal funds channeled through the city. Technically, this was an organization that Paul had potential political influence over, which, again technically, creates a conflict of interest.
While the lawn business was a sole proprietorship in his son's name, Paul helped run it while his son was away and also filed the tax returns, which is where he got in trouble.
Apparently, he did not keep very good records, and "neglected" to report approximately $162,000 in revenue over a 3 year period, thereby depriving the IRS of about $50K in taxes. I believe an audit of one of his large clients revealed that they had paid his lawn business a lot of money and further investigation revealed that Paul had not reported it.
Did he do it on purpose? I don't know, but it is obviously a lot of money to not keep track of.
This is where politics enters in. If this had been you or me, the IRS would probably have simply required you to report the additional revenue and pay the missing $50K with additional penalties and interest.
But Paul was a former legislator and mayor. Over 25 years, you create political enemies who are prepared to bury you at the first opportunity. And he certainly gave them that opportunity.
He was charged with tax fraud. A little strong in my opinion but not out of bounds. Fair enough.
But he was also charged with mail fraud.
Mail fraud?
Yes, as a state politician, he is required to file financial disclosure forms. His disclosure forms likewise did not reveal the additional income that he failed to report on his taxes. Normally, this is a state misdemeanor and a small fine.
However, and this illustrates the absolute lunacy of federal law, he dropped the form in the mail rather than hand-delivering. Therefore, by using the mail to commit a crime (filing a false financial disclosure form), even a "crime" as minor as a state misdemeanor, his offense is now a federal felony. Thus, a mail fraud count -- based entirely on mailing an inaccurate state ethics form -- was added to "jack up" his sentence.
(Sometimes, a mail fraud count is added to a tax fraud simply because the tax return was mailed in.)
Furthermore, if he did not accept the plea deal, the feds threatened to indict his son for tax fraud since his sone was technically the owner of the business (threatening to indict family members, no matter how peripherally involved, is a common tactic federal prosecutors use to coerce plea deals). His son had completed law school and would not have been able to sit for the bar while under indictment. Had his son been convicted, good-bye law career.
Therefore, Paul fell on his sword and took the plea deal. (What would YOU do?) That's the way the system works. No matter how much you want to fight the charges and tell your side of the story, the system will not let you unless you are willing to pay an unbelievably huge personal price if you lose. (And, even if you win, you lose because the process will bankrupt you and destroy your life emotionally.)
His plea deal was for 12-18 months. Normally, you get the low end of the scale as a first offender. The judge gave him 16. Nice.
Did Paul probably break the tax laws? Sure.
Did the system exploit his mistake and absolutely bury him to the maximum extent allowed by the law, moreso than what it would have done for a non-public person? I have no doubt that it did.
Did politics play a role? You tell me.
25-30 years of public service of any otherwise good man flushed down the toilet.
That, my friends, as Paul Harvey would say, is the rest of the story.
Monday, April 21, 2008
Keith Urban Concert Review
My wife recently complained that I don't take her to concerts anymore.
Like the good husband that I am, I rectified that situation quickly.
I write about it to let some of you know I actually have a life outside of writing about the evils of the police state we live in (which can get a little wearisome), but I hate to disappoint those of you who think Rage Against the Machine is my favorite band.
Instead, I awoke Friday morning and read in the paper that Carrie Underwood and Keith Urban were in town that night, one of the final stops in the "Love, Pain & the Whole Crazy Carnival Ride Tour." The concert was at newly renamed Time Warner Cable Arena (formerly Charlotte Bobcats Arena).
We actually knew more about Carrie Underwood due, of course, to her American Idol fame but I checked out Keith Urban, and his music, a couple of years ago when someone in a bar told me I looked like him. (Nothing like being told you look like a celebrity to motivate one to check out that celebrity.) My wife knew almost nothing about him.
We made reservations at a restaurant a block from the arena, I scalped a couple tickets to the sold out show -- don't tell my PO -- and there we were.
I assumed Carrie Underwood would be the main attraction and star of the show. Was I ever wrong!
Consistent with what another concert reviewer experienced, Carrie was rather mechanical and her vocals were often drowned out by her band. Of course, she has only just released her second album so the song list isn't all that long. She performed for an hour and 15 minutes.
Then, after a 30 minute stage redesign, the REAL show begain. If there was any doubt about who everyone really came to see, the audience settled that as soon as Urban and band appeared. Urban's 2-hour performance made Carrie look like an amateur. He was as engaged as Carrie was distant and stiff. In fact, I have never seen an artist give so much of himself to his audience. His band was tight and the music was perfectly balanced with the vocals.
Despite being the 21st stop on a 24-city tour, he performed as if this was their only stop. When he said it was an amazing night, I believed him, even though I'm sure he says that at every stop.
At one point, Urban brought a couple on stage so the husband could take a picture of his wife with him. (He had been carrying a sign: "Please take a picture with my wife so she will quite nagging me about this sign." Urban noticed and took the bait, much to the envy of every other woman in the crowd.)
Later, he took his guitar into the crowd, walking onto the floor then 10 rows up, while singing. After completing the song, he autographed the guitar and gave it to a fan. I don't know if the recipient was pre-arranged or not, but it was a nice touch that the audience loved.
The entire show was such a polished, tight, professional performance. I was so impressed.
The only disappointment was that Nicole Kidman, his wife of 3 years (with baby due in July), did not make an appearance. :(
I've never been to a show that is still paying emotional dividends 3 days after. I still smile every time I think about it. Hopefully the smile will go away soon so I can get back into the proper frame of mind for bashing the government.
PS We're seeing Sara Bareilles -- my latest favorite new artist -- next Tuesday (4/29/08). Mabye I will write another review after that.
Like the good husband that I am, I rectified that situation quickly.
I write about it to let some of you know I actually have a life outside of writing about the evils of the police state we live in (which can get a little wearisome), but I hate to disappoint those of you who think Rage Against the Machine is my favorite band.
Instead, I awoke Friday morning and read in the paper that Carrie Underwood and Keith Urban were in town that night, one of the final stops in the "Love, Pain & the Whole Crazy Carnival Ride Tour." The concert was at newly renamed Time Warner Cable Arena (formerly Charlotte Bobcats Arena).
We actually knew more about Carrie Underwood due, of course, to her American Idol fame but I checked out Keith Urban, and his music, a couple of years ago when someone in a bar told me I looked like him. (Nothing like being told you look like a celebrity to motivate one to check out that celebrity.) My wife knew almost nothing about him.
We made reservations at a restaurant a block from the arena, I scalped a couple tickets to the sold out show -- don't tell my PO -- and there we were.
I assumed Carrie Underwood would be the main attraction and star of the show. Was I ever wrong!
Consistent with what another concert reviewer experienced, Carrie was rather mechanical and her vocals were often drowned out by her band. Of course, she has only just released her second album so the song list isn't all that long. She performed for an hour and 15 minutes.
Then, after a 30 minute stage redesign, the REAL show begain. If there was any doubt about who everyone really came to see, the audience settled that as soon as Urban and band appeared. Urban's 2-hour performance made Carrie look like an amateur. He was as engaged as Carrie was distant and stiff. In fact, I have never seen an artist give so much of himself to his audience. His band was tight and the music was perfectly balanced with the vocals.
Despite being the 21st stop on a 24-city tour, he performed as if this was their only stop. When he said it was an amazing night, I believed him, even though I'm sure he says that at every stop.
At one point, Urban brought a couple on stage so the husband could take a picture of his wife with him. (He had been carrying a sign: "Please take a picture with my wife so she will quite nagging me about this sign." Urban noticed and took the bait, much to the envy of every other woman in the crowd.)
Later, he took his guitar into the crowd, walking onto the floor then 10 rows up, while singing. After completing the song, he autographed the guitar and gave it to a fan. I don't know if the recipient was pre-arranged or not, but it was a nice touch that the audience loved.
The entire show was such a polished, tight, professional performance. I was so impressed.
The only disappointment was that Nicole Kidman, his wife of 3 years (with baby due in July), did not make an appearance. :(
I've never been to a show that is still paying emotional dividends 3 days after. I still smile every time I think about it. Hopefully the smile will go away soon so I can get back into the proper frame of mind for bashing the government.
PS We're seeing Sara Bareilles -- my latest favorite new artist -- next Tuesday (4/29/08). Mabye I will write another review after that.
Sunday, April 20, 2008
Register Numbers
I got an email from someone reporting to Pensacola Federal Prison Camp on Tuesday. He asked what the "066" at the end of my inmate id number is (60733-066).
According to FedCure, the United States Marshals Service and the Federal Bureau of Prisons assigns a eight digit "Register Number" to all offenders in the following format: XXXXX-0XX. The last three digits signify the district wherein the offender was arrested and or processed into the system.In large districts, where over 100,000 people have been processed, the '"0" is replaced with a "1". The three digit codes and the district location are listed below:
001 - Northern District of Alabama (N/AL)
002 - Middle District of Alabama (M/AL)
003 - Southern District of Alabama (S/AL)
004 - Southern District of Florida (S/FL)
005 - District of the Northern Mariana Islands (D/MP)
006 - District of Alaska (D/AK)
007 - District of Columbia (Superior Court)
008 - District of Arizona (D/AZ)
009 - Eastern District of Arkansas (E/AR)
010 - Western District of Arkansas (W/AR)
011 - Northern District of California (N/CA)
012 - Central District of California (C/CA)
013 - District of Colorado (D/CO)
014 - District of Connecticut (D/CT)
015 - District of Delaware (D/DE)
016 - District of Columbia (DC/DC)
017 - Northern District of Florida (N/FL)
018 - Middle District of Florida (M/FL)
019 - Northern District of Georgia (N/GA)
020 - Middle District of Georgia (M/GA)
021 - Southern District of Georgia (S/GA)
022 - District of Hawaii (D/HI)
023 - District of Idaho (D/ID)
024 - Northern District of Illinois (N/IL)
025 - Southern District of Illinois (S/IL)
026 - Central District of Illinois (C/IL)
027 - Northern District of Indiana (N/IN)
028 - Southern District of Indiana (S/IN)
029 - Northern District of Iowa (N/IA)
030 - Southern District of Iowa (S/IA)
031 - District of Kansas (D/KS)
032 - Eastern District of Kentucky (E/KY)
033 - Western District of Kentucky (W/KY)
034 - Eastern District of Louisiana (E/LA)
035 - Western District of Louisiana (W/LA)
036 - District of Maine (D/ME)
037 - District of Maryland (D/MD)
038 - District of Massachusetts (D/MA)
039 - Eastern District of Michigan (E/MI)
040 - Western District of Michigan (W/MI)
041 - District of Minnesota (D/MN)
042 - Northern District of Mississippi (D/MS)
043 - Southern District of Mississippi (D/MS)
044 - Eastern District of Missouri (E/MO)
045 - Western District of Missouri (W/MO)
046 - District of Montana (D/MT)
047 - District of Nebraska (D/NE)
048 - District of Nevada (D/NV)
049 - District of New Hampshire (D/NH)
050 - District of New Jersey (D/NJ)
051 - District of New Mexico (D/NM)
052 - Northern District of New York (N/NY)
053 - Eastern District of New York (E/NY)
054 - Southern District of New York (S/NY)
055 - Western District of New York (W/NY)
056 - Eastern District of North Carolina (E/NC)
057 - Middle District of North Carolina (M/NC)
058 - Western District of North Carolina (W/NC)
059 - District of North Dakota (D/ND)
060 - Northern District of Ohio (N/OH)
061 - Southern District of Ohio (S/OH)
062 - Northern District of Oklahoma (N/OK)
063 - Eastern District of Oklahoma (E/OK)
064 - Western District of Oklahoma (W/OK)
065 - District of Oregon (D/OR)
066 - Eastern District of Pennsylvania (E/PA)
067 - Middle District of Pennsylvania (M/PA)
068 - Western District of Pennsylvania (W/PA)
069 - District of Puerto Rico (D/PR)
070 - District of Rhode Island (D/RI)
071 - District of South Carolina (D/SC)
073 - District of South Dakota (D/SD)
074 - Eastern District of Tennessee (E/TN)
075 - Middle District of Tennessee (M/TN)
076 - Western District of Tennessee (W/TN)
077 - Northern District of Texas (N/TX)
078 - Eastern District of Texas (E/TX)
079 - Southern District of Texas (S/TX)
080 - Western District of Texas (W/TX)
081 - District of Utah (D/UT)
082 - District of Vermont (D/VT)
083 - Eastern District of Virginia (E/VA)
084 - Western District of Virginia (W/VA)
085 - Eastern District of Washington (E/WA)
086 - Western District of Washington (W/WA)
087 - Northern District of West Virginia (N/WV)
088 - Southern District of West Virginia (S/WV)
089 - Eastern District of Wisconsin (E/WI)
090 - Western District of Wisconsin (W/WI)
091 - District of Wyoming (D/WY)
093 - District of Guam (D/GU)
094 - District of the Virgin Islands (D/VI)
095 - Middle District of Louisiana (M/LA)
097 - Eastern District of California (E/CA)
098- -Southern District of California (S/CA)
For more information on Register Numbers, see
FEDERAL BUREAU OF PRISONS
Program Statement 5100.08
“Inmate Security Designation and Custody Classification”
http://www.bop.gov/policy/progstat/5100_008.pdf
(Explained on page 26 of this 108 page government document)
According to FedCure, the United States Marshals Service and the Federal Bureau of Prisons assigns a eight digit "Register Number" to all offenders in the following format: XXXXX-0XX. The last three digits signify the district wherein the offender was arrested and or processed into the system.In large districts, where over 100,000 people have been processed, the '"0" is replaced with a "1". The three digit codes and the district location are listed below:
001 - Northern District of Alabama (N/AL)
002 - Middle District of Alabama (M/AL)
003 - Southern District of Alabama (S/AL)
004 - Southern District of Florida (S/FL)
005 - District of the Northern Mariana Islands (D/MP)
006 - District of Alaska (D/AK)
007 - District of Columbia (Superior Court)
008 - District of Arizona (D/AZ)
009 - Eastern District of Arkansas (E/AR)
010 - Western District of Arkansas (W/AR)
011 - Northern District of California (N/CA)
012 - Central District of California (C/CA)
013 - District of Colorado (D/CO)
014 - District of Connecticut (D/CT)
015 - District of Delaware (D/DE)
016 - District of Columbia (DC/DC)
017 - Northern District of Florida (N/FL)
018 - Middle District of Florida (M/FL)
019 - Northern District of Georgia (N/GA)
020 - Middle District of Georgia (M/GA)
021 - Southern District of Georgia (S/GA)
022 - District of Hawaii (D/HI)
023 - District of Idaho (D/ID)
024 - Northern District of Illinois (N/IL)
025 - Southern District of Illinois (S/IL)
026 - Central District of Illinois (C/IL)
027 - Northern District of Indiana (N/IN)
028 - Southern District of Indiana (S/IN)
029 - Northern District of Iowa (N/IA)
030 - Southern District of Iowa (S/IA)
031 - District of Kansas (D/KS)
032 - Eastern District of Kentucky (E/KY)
033 - Western District of Kentucky (W/KY)
034 - Eastern District of Louisiana (E/LA)
035 - Western District of Louisiana (W/LA)
036 - District of Maine (D/ME)
037 - District of Maryland (D/MD)
038 - District of Massachusetts (D/MA)
039 - Eastern District of Michigan (E/MI)
040 - Western District of Michigan (W/MI)
041 - District of Minnesota (D/MN)
042 - Northern District of Mississippi (D/MS)
043 - Southern District of Mississippi (D/MS)
044 - Eastern District of Missouri (E/MO)
045 - Western District of Missouri (W/MO)
046 - District of Montana (D/MT)
047 - District of Nebraska (D/NE)
048 - District of Nevada (D/NV)
049 - District of New Hampshire (D/NH)
050 - District of New Jersey (D/NJ)
051 - District of New Mexico (D/NM)
052 - Northern District of New York (N/NY)
053 - Eastern District of New York (E/NY)
054 - Southern District of New York (S/NY)
055 - Western District of New York (W/NY)
056 - Eastern District of North Carolina (E/NC)
057 - Middle District of North Carolina (M/NC)
058 - Western District of North Carolina (W/NC)
059 - District of North Dakota (D/ND)
060 - Northern District of Ohio (N/OH)
061 - Southern District of Ohio (S/OH)
062 - Northern District of Oklahoma (N/OK)
063 - Eastern District of Oklahoma (E/OK)
064 - Western District of Oklahoma (W/OK)
065 - District of Oregon (D/OR)
066 - Eastern District of Pennsylvania (E/PA)
067 - Middle District of Pennsylvania (M/PA)
068 - Western District of Pennsylvania (W/PA)
069 - District of Puerto Rico (D/PR)
070 - District of Rhode Island (D/RI)
071 - District of South Carolina (D/SC)
073 - District of South Dakota (D/SD)
074 - Eastern District of Tennessee (E/TN)
075 - Middle District of Tennessee (M/TN)
076 - Western District of Tennessee (W/TN)
077 - Northern District of Texas (N/TX)
078 - Eastern District of Texas (E/TX)
079 - Southern District of Texas (S/TX)
080 - Western District of Texas (W/TX)
081 - District of Utah (D/UT)
082 - District of Vermont (D/VT)
083 - Eastern District of Virginia (E/VA)
084 - Western District of Virginia (W/VA)
085 - Eastern District of Washington (E/WA)
086 - Western District of Washington (W/WA)
087 - Northern District of West Virginia (N/WV)
088 - Southern District of West Virginia (S/WV)
089 - Eastern District of Wisconsin (E/WI)
090 - Western District of Wisconsin (W/WI)
091 - District of Wyoming (D/WY)
093 - District of Guam (D/GU)
094 - District of the Virgin Islands (D/VI)
095 - Middle District of Louisiana (M/LA)
097 - Eastern District of California (E/CA)
098- -Southern District of California (S/CA)
For more information on Register Numbers, see
FEDERAL BUREAU OF PRISONS
Program Statement 5100.08
“Inmate Security Designation and Custody Classification”
http://www.bop.gov/policy/progstat/5100_008.pdf
(Explained on page 26 of this 108 page government document)
We Interrupt This Blog for the Following Special Announcement
My oldest daughter (21) Christina will be traveling to South Africa and Mozambique this summer for 8 weeks. In Mozambique she will be working with children at an orphanage, health center, and school. In South Africa, she will be working with an HIV Aids orphanage organizing activities.Christina is also a gifted artist and is selling prints of her paintings to raise money for her trip.
Please visit her website at http://www.zhibit.org/christinabailey for more information.
Thanks!
Now, back to our regular scheduled programming.
Michael Vick... Final Thoughts
[I originally wrote this on December 17, 2007 but was concerned about publishing it, knowing that some of the comments would not be popular. I also don't like to push the "publish" button after writing an article that is written in anger. While anger is a great motivator and inspires some occasional rhetorical flourishes, sometimes I later regret what I have written and wish I had toned things down a bit.
It has now gotten to the point where I don't care so much because I have since already made some strong comments in my recent posts and someone needs to say the things I am saying because, for some reason, the mainstream media won't do it. If I go "over the top" occasionally, I'll deal with it.
Furthermore, I have found a couple of articles in the "not so mainstream" online media that support, or at least are consistent with, my positions in this post. There is always comfort in numbers :)
Must reading (especially the first one):
1. Michael Vick and the Feds -- This guy definitely channels my thinking on almost all subjects related to federal criminal law.
2. Vick's Sentence Too Long -- Don't agree with everything he says, but agree with conclusion that punishment was too harsh.
3. Analyzing the Vick Sentence
OK... now for my post.]
Michael Vick was sentenced last Monday [remember I wrote this on 12/17/07] to 23 months in prison. According to the Atlanta Journal Constitution poll (see link above), 40% thought it was too harsh, 30% thought it was just right, and 30% thought it was too lenient.
1. First the facts
Vick's plea deal was for 12-18 months (level 13 of the USSG.. see http://www.ussc.gov/1998guid/98chap5.htm). However, that included 2 points "credit" for "acceptance of responsibility," which is typically given to defendants who take plea deals (and in fact is a major incentive to take a deal). The judge however did not give him those two points, raising him to level 15, which is 18-24 months, and then gave him almost the maximum within that range.
At 23 months, Vick will earn almost exactly 90 days good time credit, which means he will serve 20 months, the last 2 months (10%) in a halfway house. Since he surrendered early on November 20, 18 months means he will leave prison for a halfway house before May 20, 2009 and leave the halfway house before July 20, 2009. In theory, he would be available for training camp for the 2009 season, especially if he is allowed to relocate and report to a halfway house near whatever team decides to give him a chance (and I suspect there are one or two who will) if Commissioner Goodell doesn't suspend him further (and my initial sense is that Goodell will conclude that Vick has more than paid for his sins). Of course, this assumes that he won't serve additional time for the state charges he is facing in Virginia. Sigh.
Is it possible that Vick could get out early through the drug program? As I have discussed previously, inmates who qualify for the program (and I think Vick might) can enter once they are within 27 months of release, although in practice it is closer to 23-24 months. The program is 9 months, followed by 6 months halfway house.
Vick will serve 20 months. However, by the time he reports to a federal facility (remember, he surrendered early and I guess is in the custody of the US Marshalls, not BOP, yet). He will likely not be assigned and transferred to a BOP facility until late January, more than 2 months after he surrendered, meaning he will only has 18 months left (16 months in prison, 2 months in a halfway house). Even if he were to get in the RDAP program immediately (which I don't think is possible... it usually takes 1-2 months minimum), he would end up with 9 months in prison, 6 months in halfway house). The difference is only 3 months and that is the best case scenario. Yes, the shorter prison time is a big plus, but halfway houses are a crap shoot... I know some people who would have preferred staying in the prison camp. Plus, the supervision restrictions with respect to drugs and alcohol are so strict once someone has completed the RDAP program that Vick risks violating his probation and being sent back to prison if he slips up, which he has already shown a tendency to do!
Bottom line is I don't think the RDAP program makes much sense for him if his only goal is to get out early. Of course, he might just want to benefit from the program in which case he should go for it... it's free.
[UPDATE: Vick was transferred to Leavenworth Prison on January 7, 2008, where he apparently is playing prison football, although BOP denies it. Too funny. Furthermore, he apparently has applied for RDAP (drug treatment program) although, as of March 8, he has not been admitted... I told you he wouldn't get in immediately. As of today, Vick has served 6 months. He has 14 left, of which 2 are release to halfway house. If he gets into drug program today, it would take 9 months to finish (Jan 20, 2009) and then he would be released to 6 months of halfway house. The net effect is only 1 month saved (15 more months instead of 16), although he would save 5 months in prison but serve 4 months longer in the halfway house. Tough call for me as to whether it's worth it, although any time off is good, even if only a month. Plus I'm still concerned that the stricter drug and alcohol conditions of supervised release are a huge risk for him.]
2. Ok, enough of the facts... now for the things that trouble me about this case.
First, Vick himself.
He made about every mistake in the book in responding to this legal crisis.
Had he come clean last April (2007) with the state authorities when the case broke, instead of denying any involvment, not only would the feds likely not got involved, but he likely would have received no jail time on the state charges. He still might have been suspended, but there is not doubt that Vick was in a legal strait-jacket where the more he struggled to escape, the tighter it became. And struggle he did. And tighter it got.
He lied to his team owner and league commissioner.
He assumed his "friends" would not "rat" on him. Almost the entire case against Vick came from codefendants who plead before Vick did. In particular, Tony Taylor, who only received a 2 months sentence, really did him in. Vick is a notoriously loyal friend. He apparently assumed that loyalty, if that is what you want to call it, would be reciprocated. Bad assumption. Amazing what a little threatened prison time will do to loyalty .
After finally being forced into a plea deal, under threat of a superceding RICO indictment, [read Michael Vick and the Feds] Vick tests positive for marijuana and then gives inconsistent accounts of why. He lied to a probation officer and FBI agent (which actually is a separate crime in and of itself... ask Martha Stewart!), hedging about his involvement in killing dogs.
Ironically, the killing of dogs was not a necessary element of the crime he was charged with, but it was the most damning fact from a public relations and reputational perspective (and it probably was one factor in the judge giving him a harsher sentence than the guidelines called for). Understandably, he was reluctant to admit it. I don't know how his lawyers could have allowed this to happen unless he lied to them also, not usually a good idea.
Was he scared? Of course he was. I understand that, but his inability to get beyond his fear was a major factor in his undoing. Once he entered his guilty plea, he had to come clean. By the time he finally did (he basically broke down under questioning by an FBI agent while wired to a lie detector), the damage was already done. He gave a judge who seems predisposed to handing down harsh sentences all the ammunition he needed to show no mercy. And Vick got none.
3. Now, my thoughts about the government, which I saved for last because they are more controversial.
While I hold no brief for Vick's conduct, I am more disturbed by that of the federal government. I realize many believe the feds handled this case very professionally, but that refers to their efficiency and effectiveness, not the justice of their cause.
I realize I am in the minority because the average Joe on the street doesn't care about the legal minutia of the way this case was handled... Vick killed dogs. He is going to jail. Justice is served. Case closed. That is all the public cares about. There is almost a lynchmob mentality that takes on a life of its own, in which everyone tries to outdo the other in expresing outrage.
I, on the other hand, care about the process, which I think was very unfair to Vick. Only someone who understands the system would see this.
First, this never should have been a federal case. You may not recall that this case started because Vick's cousin, who apparently lived at the Virginia property, was arrested for marijuana and listed the house as his address. A search of the house by state authorities discovered the dogs and evidence of dog fighting. This was an ordinary state case that involved violations of state dog fighting statutes.
How did the federal government get involved?
According to East Coast Blogger:
To make this a felony, the prosecutors also charged Vick with a violation of "Conspiracy in interstate commerce/aid of unlawful animal fighting venture" (Title 18, USC, Section 371)
Huh? I hate these gobbledygook statutes that, in the hands of a motivated prosecutor, are designed to encompass almost anything. Essentially, Vick was charged with conspiracy to commit a state crime. The state crimes were dog fighting and gambling, which in Virginia are felonies, therefore making the federal conspiracy charge a felony.
In other words, the only substantive federal dog fighting law that Vick violated was a misdemeanor. It was the conspiracy to commit a state felony that became a federal felony. This is absurd, although this type of legal maneuvering to federalize state crimes is actually quite common.
What about abusing and killing dogs? Those facts, which were identified in paragraph 83 of an 84 paragraph indictment, were utterly irrelevant to the legal charges. They were presented for PR purposes only. The prosecutors knew that the public would focus on that one issue and ignore the more mundane legalities, which had nothing to do with killing dogs. In other words, the torture and killing gave the feds the "cover" to execute what was essentially a very unfair and sneaky maneuver in undercutting the state in this matter.
Why would the feds to this? Simple. It was Michael Vick. Period. If this case only involved the other defendants without Michael Vick, does anyone seriously believe the feds would have pursued it? Has anyone ever been prosecuted federally for dogfighting under this statute?
Look, I understand the public sentiment against Michael Vick. The killing of several dogs in particularly cruel fashion sealed his fate in the court of public opinion, understandably so. However, I also believe the legal process should be fair and that Vick was a victim of "piling on" by the feds. I don't like individuals being singled out for selective prosecution for their celebrity (re: Martha Stewart) so a prosecutor can pad his resume.
From a public policy point of view, the DOJ gets more "bang for the buck" in prosecuting celebrities. The publicity acts as a general deterrant. If the goal is to reduce anti-social behavior, then making an example of someone is an effectivestrategy. The cost however is injustice to the individual. That is, one individual is singled out for harsher punishment in order to discourage similar conduct by others.
[By the way, this is also precisely why the feds are seeking a 3 year maximum sentence for Wesley Snipes for failure to file a tax return: "This case presents the court with a singular opportunity to deter tax fraud nationwide," the government said in its sentencing recommendation." ]
Congress passed a Animal Fighting Prohibition Enforcement Act which was signed by George Bush on May 3, 2007. What better way to publicize the issue of dogfighting than by going after a celebrity like Michael Vick even though his crimes occured before the new law went into effect? The timing was perfect. Of course, that begs the question why such a law was necessary since the feds apparently didn't need it to prosecute Vick federally anyway.
Vick also had the misfortune of drawing a tough judge... Henry Hudson. Vick presented to the judge what I thought was a heartfelt, handwritten letter from prison, explaining how he made these bad choices, in a manner that made sense to me. He grew up in an environment in which drugs were prosecuted but dogfighting was not. Dogfighting was part of his subculture and no one ever got in trouble for it. Does that make it right? Of course not, but I can understand it and I think it mitigates somewhat his conduct just as other cultures have different values with respect to the treatment of animals. (See "What's Wrong With Eating Dogs?")
The judge apparently totally dismissed his letter as well as those of other important people. This is something I hear frequently in emails I receive.... that an entire law-abiding life is dismissed as meaningless and the defendant's entire life is now defined by one illegal act.
One particular decision of the judge that I found troubling was the failure to extend the very basic and routine courtesy of allowing Vick to wear a suit at sentencing, instead of requiring him to attend in his black and white striped prison garb. What other purpose could this have served other than to humiliate Vick unnecessarily?
As I mentioned at the beginnig of this post, the judge also rejected Vick's 2 points for acceptance of responsibility. I understand the basis for that but it also ignored the fact that Vick willingly spent almost $1 million dollars to care for the remaining 50+ dogs that normally would have been executed legally by the state. Does that count for nothing? Has any other dogfighting defendant gone to that length to demonstrate acceptance of responsibility. Yes, he was responsible for the killing of several dogs, but he was also single-handedly responsible for the saving of over 50 dogs, who are now being "rehabbed" for adoption.
I think it is fair to say that no one has ever suffered anywhere close to the consequences Vick has for running a dogfighting operation. (Actually, a SC man got 30 years for dog fighting related activities, which is really bizarre.) The punishment is so ridiculously disproportionate to the offense, it is almost impossible to comprehend how far he has fallen. To say, unsympathetically, that he brought this on himself is simply naive. The punishment goes far beyond the time in prison, which is oftentimes the case. The financial costs of Vick's prosecution have been estimated at $142 million. These are the collateral consequences of his conduct.
Finally, if anyone is looking for an excuse to be sympathetic to Vick, read the following column by Gregg Easterbrook of ESPN:
http://sports.espn.go.com/espn/page2/story?page=easterbrook/070816
In conclusion, I am compelled to agree with William Anderson's column I referred to earlier ("Michael Vick and the Feds"):
It has now gotten to the point where I don't care so much because I have since already made some strong comments in my recent posts and someone needs to say the things I am saying because, for some reason, the mainstream media won't do it. If I go "over the top" occasionally, I'll deal with it.
Furthermore, I have found a couple of articles in the "not so mainstream" online media that support, or at least are consistent with, my positions in this post. There is always comfort in numbers :)
Must reading (especially the first one):
1. Michael Vick and the Feds -- This guy definitely channels my thinking on almost all subjects related to federal criminal law.
2. Vick's Sentence Too Long -- Don't agree with everything he says, but agree with conclusion that punishment was too harsh.
3. Analyzing the Vick Sentence
OK... now for my post.]
Michael Vick was sentenced last Monday [remember I wrote this on 12/17/07] to 23 months in prison. According to the Atlanta Journal Constitution poll (see link above), 40% thought it was too harsh, 30% thought it was just right, and 30% thought it was too lenient.
1. First the facts
Vick's plea deal was for 12-18 months (level 13 of the USSG.. see http://www.ussc.gov/1998guid/98chap5.htm). However, that included 2 points "credit" for "acceptance of responsibility," which is typically given to defendants who take plea deals (and in fact is a major incentive to take a deal). The judge however did not give him those two points, raising him to level 15, which is 18-24 months, and then gave him almost the maximum within that range.
At 23 months, Vick will earn almost exactly 90 days good time credit, which means he will serve 20 months, the last 2 months (10%) in a halfway house. Since he surrendered early on November 20, 18 months means he will leave prison for a halfway house before May 20, 2009 and leave the halfway house before July 20, 2009. In theory, he would be available for training camp for the 2009 season, especially if he is allowed to relocate and report to a halfway house near whatever team decides to give him a chance (and I suspect there are one or two who will) if Commissioner Goodell doesn't suspend him further (and my initial sense is that Goodell will conclude that Vick has more than paid for his sins). Of course, this assumes that he won't serve additional time for the state charges he is facing in Virginia. Sigh.
Is it possible that Vick could get out early through the drug program? As I have discussed previously, inmates who qualify for the program (and I think Vick might) can enter once they are within 27 months of release, although in practice it is closer to 23-24 months. The program is 9 months, followed by 6 months halfway house.
Vick will serve 20 months. However, by the time he reports to a federal facility (remember, he surrendered early and I guess is in the custody of the US Marshalls, not BOP, yet). He will likely not be assigned and transferred to a BOP facility until late January, more than 2 months after he surrendered, meaning he will only has 18 months left (16 months in prison, 2 months in a halfway house). Even if he were to get in the RDAP program immediately (which I don't think is possible... it usually takes 1-2 months minimum), he would end up with 9 months in prison, 6 months in halfway house). The difference is only 3 months and that is the best case scenario. Yes, the shorter prison time is a big plus, but halfway houses are a crap shoot... I know some people who would have preferred staying in the prison camp. Plus, the supervision restrictions with respect to drugs and alcohol are so strict once someone has completed the RDAP program that Vick risks violating his probation and being sent back to prison if he slips up, which he has already shown a tendency to do!
Bottom line is I don't think the RDAP program makes much sense for him if his only goal is to get out early. Of course, he might just want to benefit from the program in which case he should go for it... it's free.
[UPDATE: Vick was transferred to Leavenworth Prison on January 7, 2008, where he apparently is playing prison football, although BOP denies it. Too funny. Furthermore, he apparently has applied for RDAP (drug treatment program) although, as of March 8, he has not been admitted... I told you he wouldn't get in immediately. As of today, Vick has served 6 months. He has 14 left, of which 2 are release to halfway house. If he gets into drug program today, it would take 9 months to finish (Jan 20, 2009) and then he would be released to 6 months of halfway house. The net effect is only 1 month saved (15 more months instead of 16), although he would save 5 months in prison but serve 4 months longer in the halfway house. Tough call for me as to whether it's worth it, although any time off is good, even if only a month. Plus I'm still concerned that the stricter drug and alcohol conditions of supervised release are a huge risk for him.]
2. Ok, enough of the facts... now for the things that trouble me about this case.
First, Vick himself.
He made about every mistake in the book in responding to this legal crisis.
Had he come clean last April (2007) with the state authorities when the case broke, instead of denying any involvment, not only would the feds likely not got involved, but he likely would have received no jail time on the state charges. He still might have been suspended, but there is not doubt that Vick was in a legal strait-jacket where the more he struggled to escape, the tighter it became. And struggle he did. And tighter it got.
He lied to his team owner and league commissioner.
He assumed his "friends" would not "rat" on him. Almost the entire case against Vick came from codefendants who plead before Vick did. In particular, Tony Taylor, who only received a 2 months sentence, really did him in. Vick is a notoriously loyal friend. He apparently assumed that loyalty, if that is what you want to call it, would be reciprocated. Bad assumption. Amazing what a little threatened prison time will do to loyalty .
After finally being forced into a plea deal, under threat of a superceding RICO indictment, [read Michael Vick and the Feds] Vick tests positive for marijuana and then gives inconsistent accounts of why. He lied to a probation officer and FBI agent (which actually is a separate crime in and of itself... ask Martha Stewart!), hedging about his involvement in killing dogs.
Ironically, the killing of dogs was not a necessary element of the crime he was charged with, but it was the most damning fact from a public relations and reputational perspective (and it probably was one factor in the judge giving him a harsher sentence than the guidelines called for). Understandably, he was reluctant to admit it. I don't know how his lawyers could have allowed this to happen unless he lied to them also, not usually a good idea.
Was he scared? Of course he was. I understand that, but his inability to get beyond his fear was a major factor in his undoing. Once he entered his guilty plea, he had to come clean. By the time he finally did (he basically broke down under questioning by an FBI agent while wired to a lie detector), the damage was already done. He gave a judge who seems predisposed to handing down harsh sentences all the ammunition he needed to show no mercy. And Vick got none.
3. Now, my thoughts about the government, which I saved for last because they are more controversial.
While I hold no brief for Vick's conduct, I am more disturbed by that of the federal government. I realize many believe the feds handled this case very professionally, but that refers to their efficiency and effectiveness, not the justice of their cause.
I realize I am in the minority because the average Joe on the street doesn't care about the legal minutia of the way this case was handled... Vick killed dogs. He is going to jail. Justice is served. Case closed. That is all the public cares about. There is almost a lynchmob mentality that takes on a life of its own, in which everyone tries to outdo the other in expresing outrage.
I, on the other hand, care about the process, which I think was very unfair to Vick. Only someone who understands the system would see this.
First, this never should have been a federal case. You may not recall that this case started because Vick's cousin, who apparently lived at the Virginia property, was arrested for marijuana and listed the house as his address. A search of the house by state authorities discovered the dogs and evidence of dog fighting. This was an ordinary state case that involved violations of state dog fighting statutes.
How did the federal government get involved?
According to East Coast Blogger:
Let me repeat: the only federal law against dog fighting prior to May 7, 2007 was a misdemeanor. And the only way the feds could even get involved is if the dogs were transported across state lines, which is something of a technicality.The only federal law against dogfighting is found in 7 U.S.C. 2156, which generally prohibits dogfighting where the dogs have been transported across state lines (a jurisdictional "hook" to get the crime under the Commerce Clause of the U.S. Constitution). Paragraph (f) of that code section allows the Secretary of Agriculture (former Nebraska Governor Mike Johanns) to enlist the FBI in investigating possible dogfighting infractions. The crime was recently made a felony by a bill signed May 7, 2007. It would appear to me that Vick would only be facing the previous misdemeanor penalties.
To make this a felony, the prosecutors also charged Vick with a violation of "Conspiracy in interstate commerce/aid of unlawful animal fighting venture" (Title 18, USC, Section 371)
Huh? I hate these gobbledygook statutes that, in the hands of a motivated prosecutor, are designed to encompass almost anything. Essentially, Vick was charged with conspiracy to commit a state crime. The state crimes were dog fighting and gambling, which in Virginia are felonies, therefore making the federal conspiracy charge a felony.
In other words, the only substantive federal dog fighting law that Vick violated was a misdemeanor. It was the conspiracy to commit a state felony that became a federal felony. This is absurd, although this type of legal maneuvering to federalize state crimes is actually quite common.
What about abusing and killing dogs? Those facts, which were identified in paragraph 83 of an 84 paragraph indictment, were utterly irrelevant to the legal charges. They were presented for PR purposes only. The prosecutors knew that the public would focus on that one issue and ignore the more mundane legalities, which had nothing to do with killing dogs. In other words, the torture and killing gave the feds the "cover" to execute what was essentially a very unfair and sneaky maneuver in undercutting the state in this matter.
Why would the feds to this? Simple. It was Michael Vick. Period. If this case only involved the other defendants without Michael Vick, does anyone seriously believe the feds would have pursued it? Has anyone ever been prosecuted federally for dogfighting under this statute?
Look, I understand the public sentiment against Michael Vick. The killing of several dogs in particularly cruel fashion sealed his fate in the court of public opinion, understandably so. However, I also believe the legal process should be fair and that Vick was a victim of "piling on" by the feds. I don't like individuals being singled out for selective prosecution for their celebrity (re: Martha Stewart) so a prosecutor can pad his resume.
From a public policy point of view, the DOJ gets more "bang for the buck" in prosecuting celebrities. The publicity acts as a general deterrant. If the goal is to reduce anti-social behavior, then making an example of someone is an effectivestrategy. The cost however is injustice to the individual. That is, one individual is singled out for harsher punishment in order to discourage similar conduct by others.
[By the way, this is also precisely why the feds are seeking a 3 year maximum sentence for Wesley Snipes for failure to file a tax return: "This case presents the court with a singular opportunity to deter tax fraud nationwide," the government said in its sentencing recommendation." ]
Congress passed a Animal Fighting Prohibition Enforcement Act which was signed by George Bush on May 3, 2007. What better way to publicize the issue of dogfighting than by going after a celebrity like Michael Vick even though his crimes occured before the new law went into effect? The timing was perfect. Of course, that begs the question why such a law was necessary since the feds apparently didn't need it to prosecute Vick federally anyway.
Vick also had the misfortune of drawing a tough judge... Henry Hudson. Vick presented to the judge what I thought was a heartfelt, handwritten letter from prison, explaining how he made these bad choices, in a manner that made sense to me. He grew up in an environment in which drugs were prosecuted but dogfighting was not. Dogfighting was part of his subculture and no one ever got in trouble for it. Does that make it right? Of course not, but I can understand it and I think it mitigates somewhat his conduct just as other cultures have different values with respect to the treatment of animals. (See "What's Wrong With Eating Dogs?")
The judge apparently totally dismissed his letter as well as those of other important people. This is something I hear frequently in emails I receive.... that an entire law-abiding life is dismissed as meaningless and the defendant's entire life is now defined by one illegal act.
One particular decision of the judge that I found troubling was the failure to extend the very basic and routine courtesy of allowing Vick to wear a suit at sentencing, instead of requiring him to attend in his black and white striped prison garb. What other purpose could this have served other than to humiliate Vick unnecessarily?
As I mentioned at the beginnig of this post, the judge also rejected Vick's 2 points for acceptance of responsibility. I understand the basis for that but it also ignored the fact that Vick willingly spent almost $1 million dollars to care for the remaining 50+ dogs that normally would have been executed legally by the state. Does that count for nothing? Has any other dogfighting defendant gone to that length to demonstrate acceptance of responsibility. Yes, he was responsible for the killing of several dogs, but he was also single-handedly responsible for the saving of over 50 dogs, who are now being "rehabbed" for adoption.
I think it is fair to say that no one has ever suffered anywhere close to the consequences Vick has for running a dogfighting operation. (Actually, a SC man got 30 years for dog fighting related activities, which is really bizarre.) The punishment is so ridiculously disproportionate to the offense, it is almost impossible to comprehend how far he has fallen. To say, unsympathetically, that he brought this on himself is simply naive. The punishment goes far beyond the time in prison, which is oftentimes the case. The financial costs of Vick's prosecution have been estimated at $142 million. These are the collateral consequences of his conduct.
Finally, if anyone is looking for an excuse to be sympathetic to Vick, read the following column by Gregg Easterbrook of ESPN:
http://sports.espn.go.com/espn/page2/story?page=easterbrook/070816
In conclusion, I am compelled to agree with William Anderson's column I referred to earlier ("Michael Vick and the Feds"):
"Whatever one thinks of dogfighting – and I believe it to be cruel and barbaric – nonetheless what the federal authorities are doing is much more cruel and barbaric, and threatens life and liberty more than anything Vick and his friends might have done at the Bad Newz Kennels. The bad publicity already has ensured that no more dogs ever will fight and die on Vick’s Virginia property, but one must understand that what federal prosecutors do every day makes the actions of Vick and his friends seem tame by comparison"
"What he did was wrong and thuggish, but while Michael Vick allegedly was a danger to some dogs, that was and is nothing compared to the dangers that federal authorities impose upon the people of this country – and, indeed, the world – every day. That, I believe, is the central issue in this case, not the guilt or innocence of a professional football player."
Subscribe to:
Posts (Atom)
