Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

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:

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 of
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 guidelines would call for a sentence of 47-63 months at this level of "loss."

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.

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.
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.

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:
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:
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.


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

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:

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:

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 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:

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:, and mailed to the following address:
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:

If you would like to know more about What’s New at PTO, please visit the PTO Site News & Information forum located here:

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:

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.

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.

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

Program Statement 5100.08
“Inmate Security Designation and Custody Classification”
(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 for more information.


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 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:

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.

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.

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:

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."

Million-Dollar Legal Advice

The more I continue to Google... uh, research... issues related to this blog, the more I find there are professionals out there who have already expressed my views eloquently. Usually they are federal defense lawyers (who, oftentimes, used to be federal prosecutors!).

I recently found a new site -- -- operated by Mark Bennett, a federal defense lawyer in Houston.

He offers his "million-dollar legal advice" :


Like most people in America, I used to believe that cops (federal or local) were "the good guys." I also used to believe "if you're innocent, you have nothing to hide."

The Rabbit Hole cured me of these naive misconceptions.

Unfortunately, if you are reading this, it's probably too late to help. The people who need to read this don't realize they need to read this.

This is the key excerpt:
When the police want to talk to you, it's not for your own good. They're not looking for evidence to clear you. They're looking for evidence against you. They're looking to twist whatever you say -- true or false -- against you.

This is SO true.The cops are not looking for truth, they are looking for evidence.

What's the difference you ask? Evidence is truth with an ulterior motive. In other words, evidence is half-truth (if that). Ironically, and counter-intuitively, this advice -- not talking to federal agents -- is most important if you are truly innocent. Unfortunately, while guilty people may understandably be reluctant, and shrewd enough not, to talk to cops, innocent people are easily ambushed and, unaware of any wrongdoing, see no harm in talking.

BIG mistake.

The best decision I ever made when 7 FBI agents raided my home at 6a and pulled me out of bed stark naked (!), was refuse to answer any more questions (after confirming my identity and ownership of my home-based business) until I talked to my attorney. They immediately stopped questioning me and executed the search warrant (authorizing them to seize all my computers). I had no idea initially why they were there but, after reading the search warrant and sensing quickly where the conversation was heading, I nipped that sucker in the bud.

My wife was not so fortunate. The agents had immediately separated us into different rooms and continued to question her. Had I really had my senses about me, I would have found her and told her she didn't need to talk. They thoroughly intimidated and attempted to humiliate her into giving up information -- the whole experience was very heavy-handed. Fortunately, I guess nothing she said must have been incriminating because the prosecutor never mentioned it.

Case example of failure to follow this advice:

In an earlier post, I referenced the case of a fellow inmate who was convicted in a jury trial of conspiracy to harbor illegal aliens. He was the outside accountant for a chain of gift shops in central Florida. He claims no knowledge of the illegal hiring (the issue of how mere hiring of illegal aliens -- a civil offense -- turned into harboring illegal aliens -- a criminal offense -- is a different story).

He testified in his own defense (a very difficult and tricky decision because, in addition to the risk of being cross-examined by the prosecutors, if you are convicted, your sentence can be enhanced for "perjury" even if you are never actually charged with perjury... I kid you not!), denying any knowledge.

The jury didn't believe him. Fifty year old man. Devout Mormon. Married 30+ years, Father of 7. Impeccable reputation. And the jury didn't believe him.


Because he talked to federal agents and their version of the conversation differed from his version.

And the jury will always believe an FBI agent's testimony over that of a defendant. A jury simply cannot conceive that a government agent (FBI, police, whatever) would lie. And those people who can conceive of such an act do not end up on juries.

In this defendant's case, he was returning from New York and was essentially ambushed at the airport by agents wanting to question him about his "client." Unfortunately for him, since he was innocent and therefore "had nothing to hide," he spoke freely. Too freely as it turns out. The more you talk, the greater the opportunity for your "testimony" to be twisted into something you never said or never meant.

He had been offered a probation deal to testify against his client (the same deal most of the internal accounting people took) which he refused. He is now serving 48 months in Pensacola federal prison camp. His wife and children visit every weekend. Great man. Wonderful family.

His big mistake?

He shouldn't have talked to federal agents.

Thursday, April 17, 2008

Let Judges Use Judgment

I recently found an article that is a nice complement to my article on Prosecutorial Discretion:

Let Judges Use Judgment by Alan Reynolds

The whole article deserves reading but let me summarize with the following excerpt:

Strict bureaucratic sentencing rules, combined with vague federal laws and regulations, are a key reason federal prosecutors no longer have to bother proving their cases to a jury. Federal prosecutors have been able to coerce pleas by threatening that if the case goes to trial they will charge numerous vaguely defined offenses and, in many cases, "forfeit" the accused person's house, car and bank account while waiting for a trial. With the risk of facing multiple counts adding up to decades of mandatory prison time, defendants with any sense of the way this game is played have no practical choice but to plead guilty to a greatly reduced charge with a reduced sentence for "cooperation."

If a misleading letter went through the mail, for example, that could mean 30 years for "mail fraud." If hearsay evidence showed two people were involved in something (which need not be a crime), such a "conspiracy" could add five more years. Accusations of being a "racketeering influenced corrupt organization" (RICO) have been applied to everything from anti-abortion groups to a chicken company.

"Obstruction of justice" is a favorite catch-all, since any remarks short of a full confession might qualify. Section 1001 of the U.S. Code says any person otherwise innocent of any crime can be sent to federal prison for up to five years for concealing a "material fact" or making a "fraudulent" statement in a conversation with any federal official or congressional staffer investigating anything, even though the accused was not under oath and not read his or her rights. Section 1001 is one of dozens of accusations that can trigger asset forfeiture (homelessness and poverty) without trial or admission of guilt.

As Heritage fellow Paul Rosenzweig explained, "Broad and overlapping statutes with minimum obstacles to criminalization and harsh penalties... induce guilty pleas and produce high conviction rates, minimizing the costs of the cumbersome jury system.... And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public."

Wednesday, April 9, 2008

Bush Signs Second Chance Act of 2007

Today President Bush signed into law the Second Chance Act of 2007, federal legislation designed to ensure the safe and successful return of prisoners to the community.

According to the Council of State Governments, "There are currently 1.7 million people serving time in our federal and state prisons, and millions of people cycling through local jails every year. Ninety-five percent of all prisoners incarcerated today will eventually be released. The Second Chance Act will help ensure the transition people make from prison or jail to the community is safe and successful. "

While in prison, the Second Chance Act was often discussed (trust me, inmates are very aware of potential legislation that is relevant to their situation -- there are documents in the law library that keep us updated -- although they have learned not to get their hopes up too much). Unfortunately, this is not exactly the legislation that we -- at least the guys I hung out with -- were interested in, not that this legislation might not be helpful to some. The legislation they really cared about is called the Second Chance for Ex-Offenders Act of 2007, which is currently stalled in Congress.

But first, the key provisions of the legislation signed today. Then I will discuss the legislation we really want.

Key Provisions

Demonstration Grants. Provides grants to states and local governments that may be used to promote the safe and successful reintegration into the community of individuals who have been incarcerated. Allowable uses of funds include employment services, substance abuse treatment, housing, family programming, mentoring, victims services, and methods to improve release and revocation decisions using risk-assessment tools.

Mentoring Grants. Provides grants to nonprofit organizations that may be used for mentoring adult offenders or offering transitional services for reintegration into the community.

Offender Reentry Substance Abuse Treatment. Creates grants to improve the availability of drug treatment to offenders in prisons, jails, and juvenile facilities.

Family Drug Treatment Programs. Authorizes grants to states, local governments, and Indian tribes to develop and implement family-based treatment programs for incarcerated parents who have minor children.

Federal Reentry Initiative. Provides guidance to the Bureau of Prisons for enhanced reentry planning procedures. Specific information on health, employment, personal finance, release requirements and community resources shall be provided to each inmate released.

Reentry Research. Authorizes the U.S. Justice Department’s National Institute of Justice and the Bureau of Justice Statistics to conduct reentry-related research.

National Adult and Juvenile Offender Reentry Resource Center. Establishes a national resource center to collect and disseminate best practices and to provide training on and support for reentry efforts.


Second Chance for Ex-Offenders Act of 2007

Now, about the other legislation whose name is similar to the signed bill. It is intended to allow former convicts to file a petition to expunge their conviction record for certain nonviolent criminal offenses.

Currently, federal offenders are offenders forever unless pardoned by the president.

Good luck with your application! :)

Under this proposed legislation, federal offenders can have their conviction expunged, something that normally only occurs at the state level. Upon expungement, all records pertaining to the criminal offense, except publicly available court opinions and appeal documents, would be sealed. Ex-offenders would no longer be required to divulge information related to the expunged conviction. Their status as ex-offenders would not be grounds to disqualify them from any profession. However, a nonpublic record of a disposition or conviction would still be retained by the Department of Justice for use in any subsequent legal action.


The bill specifies five criteria that individuals must meet in order to qualify for the Second Chance Act. They are:

1. No convictions for a violent offense and no conviction for a nonviolent offense other than the one they are trying to expunge.
2. Must have fulfilled all requirements of their sentence.
3. Must have remained free from drug or alcohol dependency for at least one year and have been rehabilitated to the court's satisfaction, if that is part of their sentence.
4. Must have obtained a high school diploma or GED.
5. Must have completed at least one year of community service, as determined by the court.

Nonviolent offenses are defined by the Act as "a misdemeanor or felony offense... [that does not involve] the use of a weapon or violence and which did not actually involve violence in its commission."

Obviously, for white collar guys like myself, who don't really need re-entry assistance, this legislation is much more relevant.

Corporate Deferred Prosecution Agreements

The NY Times has an interesting article today -- In Justice Shift, Corporate Deals Replace Trials :

In a major shift of policy, the Justice Department, once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years.
Legal experts say the tactic may have sent the wrong signal to corporations — the promise, in effect, of a get-out-of-jail-free card. The growing use of deferred prosecutions also suggests one road map the Justice Department might follow in the subprime mortgage investigations.
Defenders of deferred prosecutions say that they have been too harshly criticized lately and that they play a crucial role in allowing the government to secure the cooperation of a company while avoiding the time, expense and uncertainty of a trial. The agreements, government officials say, also avoid the type of companywide havoc seen most acutely in the case of Arthur Andersen, the accounting firm that was shuttered in 2002 after being indicted in the Enron scandal. The firm’s collapse threw 28,000 employees out of work.

Consider me slightly encouraged if this is true, but a little skeptical of the fine print. It is my understanding that these agreements usually require full "cooperation" on the part of the company, which usually means offering up selected employees as "sacrificial lambs."

Consider what Tom Kirkendall says about the fall-out from Enron:

As with the Lay-Skilling case, the Nigerian Barge case has long represented much of what is wrong with the Department of Justice's regulation of business-through-criminalization approach in the post-Enron era. After prosecuting Arthur Andersen out of business in the intensely anti-business, post-Enron climate, the Enron Task Force threatened to do the same to Merrill Lynch unless the firm served up some sacrificial lambs, which it did with Mr. Brown, Daniel Bayly, Robert Furst and William Fuhs.

Through a deferred prosecution agreement with Merrill, the Task Force then proceeded to hamstring the defendants' defense by limiting access to other Merrill Lynch executives involved in the barge transaction. Moreover, the Task Force intimidated other potentially exculpatory witnesses by threatening to indict them if they cooperated with the defense. After bludgeoning a couple of plea deals from former key witnesses Ben Glisan and Michael Kopper, the Task Force proceeded to put on a paper-thin case against the defendants, which was good enough to obtain convictions in the hyper-anti-Enron climate of Houston in 2004.

Furthermore, consider the KPMG tax shelter fraud case:
Under [the deferred prosecution] agreement, KPMG LLP admitted criminal wrongdoing in creating fraudulent tax shelters to help wealthy clients dodge $2.5 billion in taxes and agreed to pay $456 million in penalties. KPMG LLP will not face criminal prosecution as long as it complies with the terms of its agreement with the government. On January 3, 2007, the criminal conspiracy charges against KPMG were dropped. However, Federal Attorney Michael J. Garcia stated that the
charges could be reinstated if KPMG does not continue to submit to continued
monitorship through September 2008.

The agreement required KMPG's "cooperation" in prosecuting 19 individuals. According to DOJ, "full cooperation" means that KPMG cannot pay their employees' legal fees (which is a standard benefit for partners who are prosecuted for a work-related crime and indeed was part of these employees' employment contract with KPMG).

The judge however slammed DOJ for this tactic:
On 27 June 2006, Judge Kaplan ruled that by threatening KPMG with indictment unless the firm reneged on its policy of paying the defense costs of partners who were indicted for work performed in the course of the firm's tax shelter business, the Department of Justice violated the constitutional rights of employees. In his opinion, Judge Kaplan agreed with the defendants' contention that KPMG was improperly pressured to pay [sic! I think this should say "not pay"] their legal expenses, "because the government held the proverbial gun to its head."
On 17 July 2007, Judge Kaplan dismissed charges against 13 former KPMG
employees, ruling that he had no alternative because the government had strong-armed KPMG into not paying the legal fees of defendants and had violated their rights. "This indictment charges serious crimes. They should have
been decided on the merits as to every defendant," Kaplan wrote. "But there are limits on the permissible actions of even the best prosecutors." Barring KPMG from paying its former employees' legal bills "foreclosed these defendants from presenting the defenses they wished to present, and, in some cases, even deprived them of the counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice," Kaplan wrote in his ruling.
However, while what happened to Arthur Andersen was a travesty, it may explain the increase in deferred prosecution agreements.

Indeed, according to Andrew Weissmann, the former director of the Enron Task Force (which prosecuted Arthur Andersen) in this interview and "against a growing consensus in the defense bar that the firm should not have been prosecuted":
“One of the fallouts from Andersen is that corporations are much more willing to say yes to deferred prosecution agreements, because they can see what happened to Andersen,” Weissmann said. “What major corporation is now going to gamble that the Justice Department is going to go away and issue a declination? That's one of the reasons you are seeing a dramatic rise in deferred prosecution agreements and non-prosecution agreements.”
To which Tom Kirkendall replies:

H'mm, let's break this reasoning down. An improper prosecution that cost people and communities in the U.S. over 30,000 jobs was really Andersen's fault because the firm didn't agree to a deferred prosecution agreement in regard to crimes that the firm did not commit. Besides, despite the cost of thousands of jobs and millions of dollars in retirement benefits, the improper prosecution was still justified because it achieved the better good of scaring other companies into selling out their employees and copping deferred prosecution agreements.

That such appalling reasoning goes unchallenged in the article is a daunting sign of our times. Prosecution of business crimes has become a game of roulette for prosecutors such as Weissmann, who play on an ugly cauldron of public cynicism, resentment, and tolerance for abusive use of governmental power to prosecute the unpopular business executive of the moment. When the frightening loss of thousands of jobs and the destruction of careers and families is glibly rationalized by a former high governmental official as merely a tolerable cost of the use of the state's awesome prosecutorial power for the better good of society, we are well on our way to a time when, as Sir Thomas warns us, we will not be able to "stand upright in the winds" of abusive state power that will blow then.

Like I said, I am encouraged that businesses are no longer being destroyed, but I am skeptical of the fine print underlying this new "shift." When the government threatens a company with destruction unless it agrees to a deferred prosecution agreement that requires it to destroy the lives of selected employees, hmm indeed.

Tuesday, April 8, 2008

Federal Prosecutors and Sentencing Discretion

[Some may think my comments here a little too negative, cynical, or paranoid. However, I suggest you take a look as some of the corroborating comments by federal judges at the end of this post.]

As a follow-up to my previous Enron post, consider this article:

The Federal Prosecutor: A Calling Betrayed

It includes what I presume is a famous speech given by Robert H. Jackson in 1940 to a gathering of US Attorneys. At the time, he was the US Attorney General. He later became a Supreme Court Justice.

These remarks in particular deserve repeating:

"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."

If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

The US Sentencing Guidelines were part of an overall reform package implemented in the mid-1980s. The intent was to create more uniform sentences across the country by reducing the discretion of judges. Certainly, everyone would agree that two people convicted of identical conduct should receive similar sentences. Unfortunately, what has actually happened is that discretion has not be removed from the system, it has simply been transferred from impartial judges to partial prosecutors. In other words, the guidelines only insure that identically charged (and convicted) defendants are sentenced similarly but it can't guarantee that identical conduct will be charged similarly -- two individuals who commit identical acts could be charged dramatically differently based on the discretion of two different prosecutors. And, of course, that means that their sentences will be dramatically different.

Unlike judges, prosecutors are graded on convictions (and length of sentences); they don't get "points" for choosing not to prosecute someone. That is, they aren't graded on doing justice.

The most important exercise of discretion occurs when prosecutors make their charging decision -- that is, what offenses to charge a defendant with. Given the power of a prosecutor, as described above, it is not difficult to make a defendant's life miserable during the pre-trial (or even pre-indictment) phase and then threaten to charge with marginal or technical violations of obscure or broadly worded statutes in order to extort a plea agreement. (For example, money laundering is a favorite, and almost automatic, additional count for fraud offenses and can be triggered merely by depositing funds derived from "specified unlawful activity" into a bank account, even without any effort to conceal.)

Most citizens do not realize -- I certainly didn't -- that the "penalty" for exercising one's constitutional right to a jury trial is, if convicted, a sentence typically 4-5 times longer than what one would receive with a plea deal, which is one of the reasons the plea bargaining process is unbalanced, if not unfair. It is understandable that a defendant who "accepts responsibility" will, and probably should, get a slightly lower sentence than a defendant who proclaims his innocence and is convicted. Indeed, the guidelines already provide a 2-3 point reduction for this (which translates to approximately 6-24 months depending on the length of the unadjusted sentence). It is also understandable that a defendant who saves the Court and the Government the time and resources to prosecute a jury trial should be rewarded somewhat for that.

However, "innocent" defendants -- and this is especially an issue with white-collar defendants who have no criminal history -- who have always been taught to believe, and indeed do believe, in the American justice system, ("truth, justice, and the American Way", yada, yada, yada) but are naive about the difficulty of beating the feds in a jury trial (trust me, the deck is seriously stacked in favor of the prosecution, notwithstanding the so-called "presumption of innocence"), are most vulnerable to the temptation to fight the charges, only to find themselves with long prison sentences.

It is a difficult task -- although it may be the most important task -- for a defense lawyer to explain to his client that, once he has been caught in the web of a federal investigation, the process is not about guilt or innocence, fair or unfair, right or wrong... it is ONLY about controlling the damage. Ditch the ego. Forget about your reputation. This is not a game. It is not a dream. Your liberty and your livelihood are on the line.

I heard this over and over in prison... inmates who, knowing what they know now, wish they had just taken the deal. What is it that they know now? "You can't beat the feds." It is almost a mantra -- "You can't beat the feds."

I knew an inmate (another story I hope to tell) who was charged (i.e. indicted) with identical conduct as his co-defendant (they were both corporate executives, one was the president, the other the executive VP). Just before trial (after 5 years of investigation!), he took a plea deal (19 counts were reduced to 1) and received 27 months. With admission to the RDAP (drug) program, he will serve about 14 months (in fact, he is probably already out). His co-defendant insisted on his innocence and went to trial. He was convicted of all counts and received 15 years (of which he will serve about 12.5 years). Identical objective conduct. Both equally believed in their own innocence. Both were in their late 30s, married with young children. Both engaged in conduct that was not uncommon during the dot-com boom. One defendant -- the one I met in prison -- "caved" (or "saw the light", depending on your perspective), refusing to take the risk. The other fought. The results were catastrophic.

The inmate I referenced in the previous post, who was convicted of "conspiracy to harbor illegal immigrants," was offered a plea deal of probation (although he would have still been a federal felon). He refused because it would have required him to lie and testify against his client. He was convicted and receive 4 years.

I could go on and on.

One guy was offered a year for conspiracy to commit money laundering (a "non-crime" crime if there ever was one). Turned it down. Convicted. Now serving 41 months. Had he taken the deal, he would have been out of prison before his trial actually ended up starting!

Another was offered a year. Turned it down. Convicted. 47 months. Also would have been out before his trial ended up starting.

Due to the inflexibilty of the US Sentencing Guidelines (even though they are technically advisory after Booker), and the prevalence of plea deals (only about 5% of cases actually go to trial), prosecutorial discretion is the whole ball-game. Prosecutors, for all practical purposes, determine the sentences of all defendants; the judges have become mere arithmeticians, adding up the USSG points and sentencing within the narrow range required. Previously, judges could review all the facts of a case and make a decision as to the appropriate sentence. This was a check on prosecutors "over-indicting" individuals for technical violations of statutes outside the intent of Congress.

Perhaps what we need are US Prosecution Guidelines (that define how prosecutorial discretion is to be exercised), rather than US Sentencing Guidelines.

For more "objective" information on this important subject, please check out this great article in the Georgetown Journal of Legal Ethics last year:

When Doing Justice Isn't Enough: Reinventing the Guidelines for Prosecutorial Discretion

If you think I exaggerate in this post, consider these comments by (now senior) Federal District Judge Graham Mullen at a US Attorney's Office retreat, which includes the following:

On pursuing convictions in court: "If you define excellence as prosecuting every case that passes through your quality screen pursuing a win-a-conviction-at-all-cost and a maximum sentence, then we have a conceptual cognitive dissonance."

On how federal prosecutors are perceived: "Your office is perceived as acting like arrogant bullies who over-indict, always believe snitches, threaten defendants who seek release on bond, always seek to get the max and go for the jugular."

On federal sentencing guidelines: "I am only performing a ministerial function -- indeed only slightly more than a clerical function at sentencing. Frankly, the sentencing guidelines would gag a maggot. ... You now determine the sentence. Not me. Your power has become all but absolute."

Or this article by District Judge Carl Horn III, which includes:

While we should avoid idealizing the way things "used to be," it is an objective fact that since 1987 most sentencing discretion in federal cases has been either taken away entirely or transferred to the prosecutor. In my view, as a former prosecutor and close observer of the federal criminal process, this transfer of sentencing power has yielded regrettable results.

What they [drug offenders] have done is wrong and self-destructive to be sure, but I also find the glee with which many 30-something AUSAs send them off to decades in prison to be profoundly offensive .

The "big picture" solution to the current imbalance is to change the law, that is, to return sentencing discretion to the judiciary where it has properly resided since before Blackstone wrote his Commentaries on the Laws of England.

And finally (I like this one):

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. [Or, start a blog!!! ]