Who Can Benefit From New Crack Cocaine Guidelines?

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines.

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) (available here) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2). In the first two decisions, we held that those amendments did not authorize a court to reduce a sen

tence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments. See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range). Our decisions in Glover and Laws

on establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months. As a result, Amendments 750 and 759 would reduce his guidelines range. For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion. Because the court be lieved it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence. Buy the new book below for a true story of surviving federal prison and ways to get your sentence lowered. Click the picture below!

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New Crack Cocaine Law Federal Guidelines Making Progress

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2).  In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments.  See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range).  Our decisions in Glover and Lawson establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months.  As a result, Amendments 750 and 759 would reduce his guidelines range.  For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion.  Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

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May’s Harshest Prison Sentence of the Month

(CBS) – Last Friday, Jacksonville mother Marissa Alexander was sentenced by a Florida judge to 20 years in prison for firing what she says was a “warning shot” into the wall after a physical altercation with her husband, Rico Gray.

The case has set off yet another controversy involving the state’s “stand your ground” law, which is under intense scrutiny after the shooting death of Trayvon Martin in February. Critics, including Congresswoman Corrine Brown (D-Fla.), are crying foul.

How, they ask, could a 31-year-old woman in a relationship with a man who had a history of domestic violence, and whose actions did not result in any physical injury, be sentenced to two decades in prison while George Zimmerman, the man who shot and killed Martin, is out on bail?

“The Florida criminal justice system has sent two clear messages today,” Rep. Brown said in a statement on May 11. “One is that if women who are victims of domestic violence try to protect themselves, the “Stand Your Ground Law” will not apply to them…The second message is that if you are black, the system will treat you differently.”

According to a sworn deposition taken in November 2010, Gray, 36, said that on August 1, 2010, he and Alexander began fighting after he found text messages to Alexander’s first husband on her phone. The two were already estranged – according to her father, Alexander had been living at her mother’s since the birth of the couple’s daughter nine days earlier, and Gray, a long-haul trucker, said he spent the night before in his tractor-trailer. Gray began calling her names, saying “If I can’t have you, nobody going to have you,” and blocking her from exiting the bathroom.

Alexander pushed past Gray and went into the garage where she got her gun from her car’s glove compartment.

Gray told prosecutors in the deposition that Alexander came back into the house holding the weapon and told him to leave. He refused, and what happened next is somewhat unclear. In his deposition, Gray said “she shot in the air one time,” prompting him and the children to run out the front door. But when Gray called 911 the day of the incident, he said “she aimed the gun at us and she shot.”

In August 2011, a judge rejected a motion by Alexander’s attorney to grant her immunity under the “stand your ground” law. According to the judge’s order, “there is insufficient evidence that the Defendant reasonably believed deadly force was needed to prevent death or great bodily harm to herself,” and that the fact that she came back into the home, instead of leaving out the front or back door “is inconsistent with a person who is in genuine fear for her life.”

Alexander’s case was prosecuted by Angela Corey, the Florida State’s Attorney who is also prosecuting George Zimmerman. Alexander was charged with aggravated assault with a deadly weapon, and because she discharged a firearm during the incident, the case fell under Florida’s “10-20-life” law, enacted in 1999, which mandates a 20-year sentence for use of a gun during the commission of certain crimes.

Corey initially offered Alexander a three year deal if she pleaded guilty to aggravated assault, but according to CBS affiliate WTEV, Alexander did not believe she had done anything wrong, and rejected the plea. Her bet did not pay off: the jury in the case returned a guilty verdict in less than 15 minutes.

Now, Alexander’s family is looking for a new attorney to take the case on appeal and plans to ask the governor for clemency.

“I know that she truly tried to defend herself,” says Lincoln Alexander, Alexander’s first husband.

Rep. Brown is helping. The Congresswoman told Crimesider she has contacted several attorneys about taking the case and is helping the NAACP plan a May 29 march in support of Alexander.

According to Mitchell Stone, a Jacksonville defense attorney who has tried numerous stand your ground and domestic violence cases, there were several problems with Alexander’s case. First, according to court documents, Alexander violated her bail by returning to the home where the shooting incident took place several months later.

“A lot of people would say, if she’s so afraid of him, what’s she doing going back there?” says Stone.

Second, as the judge pointed out in the ruling that denied stand your ground immunity, presumably Alexander could have fled the home through the back door instead of returning to the house and confronting Gray.

“Obviously, the jury believed the state’s position, that she went into garage to get the gun and make a stand, and that’s not going to be tolerated,” Stone says.

Stone says the case is “not perfect from a defense perspective,” but believes Alexander may have grounds for an appeal based on the judge refusing to admit testimony from witnesses who could tell the jury about Gray’s history of violence against women. And there are disputes about significant facts in the case, including whether Alexander could have escaped out the garage instead of getting her gun and returning to the house; Gray said he “knew she couldn’t leave out the garage door because the garage door was locked” in his November 2010 deposition, but in her ruling against allowing Alexander “stand your ground” immunity, Judge Elizabeth Senterfitt wrote that “there was no evidence presented to support her claim.”

“You can’t shoot a gun at people,” says Corey. “It ricocheted from the wall to the ceiling, but what if it had hit someone?”

Alexander’s case is bringing scrutiny to mandatory minimum sentences, which Stone says “take discretion out of judges’ hands” and essentially hand that power to prosecutors, who already decide which charges to bring. Corey, for example, could have charged Alexander with straight aggravated assault, instead of adding the gun charge, but she told Crimesider that once Alexander rejected the plea deal, she felt it was her duty to charge according to the law.

As Corey put it, “She discharged a gun to kill them, and she has to answer for that.”

Her decision didn’t surprise Stone: “When Corey took office in 2008, part of her platform was getting tough on gun crime.”

While Florida’s Gov. Rick Scott has convened a task force to look at the state’s “stand your ground” law in the wake of the Trayvon Martin case, Stone says that people lobbying to repeal mandatory minimums are in the “extreme minority.”

So, while Alexander waits in prison, her family and supporters insist her conviction and long sentence are a grave miscarriage of justice. They’ve created a website to spread the word about Alexander’s case and raise money for an appeal.

Alexander’s father, Raoul Jenkins, told Crimesider that his daughter had had a licensed gun for years and the two had been to the shooting range together.

“If Marissa wanted to shoot anybody she could,” Jenkins says. “But that was not her intent. Her intent was to diffuse the situation without anyone getting hurt or killed.”

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Harsh Prison Sentence of the Month

By Jeff Coen and Bob Secter, Chicago Tribune reportersDecember 8, 2011

A contrite former Gov. Rod Blagojevich was sentenced Wednesday to 14 years in federal prison, capping one of the state’s worst political scandals and humbling a controversial and defiant figure who rode into office as a champion of reform.

The sentence handed Blagojevich was the second-longest ever delivered in federal court in Chicago for a public corruption case. But U.S. District Judge James Zagel made it clear that the former governor’s position and the relentless history of corruption in Illinois demanded a harsh message.

“When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily repaired,” the judge lectured Blagojevich. “You did that damage.”

The sentence is more than double the prison time given to Blagojevich’s corrupt predecessor, George Ryan, and marks the fourth time since the 1970s that a former Illinois governor has been sent to prison for wrongdoing.

Blagojevich, who became the first Illinois governor impeached and involuntarily removed from office, is expected to turn himself in to start serving his sentence Feb. 16 — putting two Illinois governors in prison at the same time. Ryan is serving a 61/2-year prison term.

Under federal sentencing rules, Blagojevich won’t be eligible for release until early 2024, when he is 67 years old.

The former governor was sentenced after making a final plea to Zagel that saw him apologize to the court but seemingly stop just short of fully admitting he had done something criminal.

“I’m here convicted of crimes. The jury decided I was guilty,” Blagojevich said, leaning with both hands on the courtroom lectern in front of Zagel. “I am accepting of it. I acknowledge it and I, of course, am unbelievably sorry for it.”

Blagojevich’s voice sometimes halted as he attempted to keep his emotions in check. He apologized to the people of Illinois, saying he thought what he was doing was permissible, but he acknowledged he should have known better.

He also apologized to his brother, who left his home and business in Nashville to become his fundraising chief in 2008 and who was tried along with him last year. The first Blagojevich jury, which deadlocked on all but one count, was unable to reach a verdict against Robert Blagojevich, and prosecutors subsequently dropped the case against him.

And Blagojevich grew emotional as he apologized to his wife and daughters for the trouble he caused his family.

“My life is ruined,” he said. “I have nobody to blame but myself for my stupidity and actions and words and what I thought I could do. I’m not blaming anybody.”

In the first row of the courtroom, Blagojevich’s wife, Patti, sometimes leaned forward in tears in her seat as those around her tried to console her.

Blagojevich also expressed remorse for dragging so much of the case into the news media, sometimes publicly challenging the integrity of prosecutors on television.

“I’m accustomed to fighting back, and I did and it was inappropriate,” he said.

Zagel gave Blagojevich credit for accepting responsibility, saying he believed the former governor was “truthfully admitting his conduct.” The judge noted that Blagojevich’s acknowledgment was coming late, but Zagel said he was accounting for the difficulty Blagojevich likely had accepting responsibility sooner as a public figure.

The judge ruled, however, that Blagojevich’s pleas for mercy on behalf of his two children and wife did come too late.

“Why did devotion as a father not deter him from engaging in such reckless conduct? … Now it is too late,” Zagel said. “If it’s any consolation to his children, he does not stand convicted of being a bad father.”

Over the course of two trials, Blagojevich was convicted of 18 criminal counts involving the attempted sale of the U.S. Senate seat vacated by Barack Obama, illegal shakedowns for campaign cash and lying to federal agents. Blagojevich’s excuses have ranged from saying he wasn’t stopped by a host of lawyers he had around him to arguing he never intended there to be a quid pro quo for the Senate seat.

“The jury did not believe him, and neither did I,” Zagel said.

The judge said Blagojevich was warned by his advisers, noting that his chief counsel and chief of staff cautioned him not to even joke about trading the Senate seat for something for himself. Undercover recordings captured Blagojevich trying to get an ambassadorship or high-paying job in exchange for appointing Obama friend Valerie Jarrett to the seat. Later, he sent his brother to see about a promise of $1.5 million in campaign cash for appointing U.S. Rep. Jesse Jackson Jr. to the Senate.

During testimony at his second trial last summer, Blagojevich had tried to dismiss the recorded discussions as his “lengthy musings” about what to do with the Senate seat. Zagel slapped that idea down as well. “Musings are talks without purpose,” the judge said.

The defense asked for a sentence well below Ryan’s, but Zagel settled on a term just slightly below the 15 to 20 years sought by prosecutors.

Blagojevich’s lawyers left the Dirksen U.S. Courthouse without commenting Wednesday, but lead attorney Sheldon Sorosky promised an appeal.

A group of jurors from Blagojevich’s two trials who attended Wednesday spent about 20 minutes together meeting with Zagel after the sentence was imposed, discussing among other things whether the sentence would be a deterrent, they said.

Like others in the group, juror Karin Wilson said she thought Blagojevich’s remarks to the court fell short.

“I was glad to hear him accept some responsibility as far as being sorry for his family,” she said. “I still don’t think I heard him say, ‘What I did was illegal, what I did was wrong.’”

In his remarks Wednesday before the judge imposed sentence, Assistant U.S. Attorney Reid Schar railed against Blagojevich, calling the former governor a manipulative and clever criminal who tried to talk his way out of a conviction by lying in court over seven days on the witness stand during the second trial.

“It didn’t work,” said Schar, who labeled Blagojevich as corrupt from the time he first took the oath of office until the day of his arrest three years ago Friday.

The prosecutor scoffed at the defense notion that there was no harm done to the state by Blagojevich’s actions because he didn’t pocket any money in the schemes he was trying to carry out. Schar said Blagojevich held up funding to pediatric hospitals in the state while he tried to get a campaign donation from the CEO of Children’s Memorial Hospital.

But most shockingly, Blagojevich left open a Senate seat while he bartered to get something for himself, Schar said. It was at a time in the fall of 2008 when the economy was struggling and votes of national significance were taking place in the Senate, Schar said.

“Illinois was left with one vote,” Schar said. “The defendant’s criminal activity corrupted the decision-making process of Illinois.”

Schar asked Zagel to send a message of deterrence to other public officials.

“The people have had enough,” he said. “They’ve had enough of this defendant. They’ve had enough of those who are corrupt like him. … They should have the highest expectations that their elected leaders will honor that faith the people put in them.”

In a news conference after the sentencing, U.S. Attorney Patrick Fitzgerald said the 14-year prison term should have any public official thinking twice about corruption.

“In any state it would be awful if two governors were convicted in a century, yet we’ve seen it happen twice in five years,” Fitzgerald said. “This needs to stop.”

In addition to Ryan, two other recent Illinois governors, Otto Kerner and Dan Walker, as well as dozens of other public officials, from Chicago aldermen to Illinois lawmakers to congressmen and prominent suburban officials, have been sent to prison in recent decades.

As for Blagojevich, he was right back in front of television cameras on his way out of court, saying he wanted to go home to his daughters to explain to them what it all meant.

But ever one to lean on a memorized quote, the former governor went right back to a Rudyard Kipling poem he had recited for the media in the first news conference he gave after he was charged in 2008. The verse is about being strong in the face of adversity.

“If you can meet with triumph and disaster and treat those two impostors just the same,” Blagojevich said.



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Mandatory Minimums – A Prosecutor’s Secret Weapon?

GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

The ‘Trial Penalty’

In the courtroom and during plea negotiations, the impact of these stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.

In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.

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Federal Ruling on Florida Sentencing Laws

Are Florida’s drug laws unconstitutional?

On July 27, in Shelton v. Department of Corrections, federal judge Mary Scriven held Florida’s state drug law unconstitutional because it lacked a requirement that the state prove a defendant knew he or she was engaged in illegal activity to obtain a conviction. In a nutshell, the ruling says that Florida cannot constitutionally punish someone for violating drug laws without requiring that the state prove the defendant knew he or she was violating those laws.

Many FAMM members have asked us what this ruling means. Unfortunately, the short answer is: no one knows yet. Based on the questions I’ve received, three issues seem to be among the most important. Before we get to those, let me offer some background on the Shelton case.

In 1996, the Florida Supreme Court ruled in Chicone v. State that when it wrote Florida’s drug statute, the legislature intended to include a “mens rea” (intent) requirement, even though the law itself contained no such provision. In other words, the Court held that in drug cases, the state must prove that a defendant knew that a substance was illegal before he or she could be convicted of possessing or distributing illegal drugs. It ruled the same way in State v. Scott in 2002.

After the Scott decision, the Florida legislature passed what would become Florida Statute 893.101, which was designed to overturn Chicone and Scott, and remove any intent requirement from Florida’s drug laws.

Specifically, F.S. 893.101 says (in relevant part):

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter. . . .

So, what does it mean?
The federal Shelton ruling has thrown drug cases based on violations of chapter 893 – from possession to distribution to trafficking – into question all over the state.  Based on questions received from FAMM members, three issues seem to be among the most important.

1. How will the ruling affect pending drug cases?
Because the ruling came from a federal court, the degree to which it will impact state drug cases is simply unknown at the moment. Florida’s rule is that if a Florida District Court of Appeal (DCA) has decided a case that directly addresses the same issue as the federal ruling, then the state court ruling (and NOT Shelton) will control in a given case, and several DCA opinions have upheld the constitutionality of Florida’s drug laws.

That said, whether those opinions address the same issue as Shelton is entirely up to the judge in any given case, which means there is simply no way to determine in advance what impact the ruling will have on drug cases going forward. Right now, attorneys all over the state are filing motions to dismiss pending drug cases, and it’s too early to determine how courts will react.

2. Will Shelton affect drug trafficking cases?
Florida Statute 893.135 defines trafficking, which was not directly at issue in Shelton, as: “Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession . . .” various amounts of illegal drugs is guilty of drug trafficking under the statute.


The word “knowingly” is relevant, because Shelton held that the state may not charge a citizen with a drug offense without proving the offender “knew” he or she was engaged in illegal activity (i.e., that the defendant was aware that what he or she possessed was illegal), and “knowingly” in F.S. 893.135 seems to cover that requirement. However, F.S. 893.101, which removed the intent requirement for drug offenses, applied to “any offense under this chapter,” which ostensibly includes trafficking (itself an “offense” under the “chapter”). So Shelton could be read to either include or exclude trafficking cases; again, the answer depends largely on the judge in the case, and we just don’t yet know how courts will treat the issue.


3. Will this ruling affect those already convicted of drug offenses?
Unfortunately, that is not clear, either. What we do know is that Shelton is not automatically retroactive, and that general retroactive application of Shelton’s holding will have to come in the form of an opinion from either the Florida or United States Supreme Court. The (admittedly somewhat dissatisfying) answer on retroactivity after Shelton is that some people incarcerated for drug offenses will likely be able to petition for re-sentencing under Florida Rule of Criminal Procedure 3.850, and others will not.


Stay tuned for more information
In the end, as Jim Felman, the lead attorney who worked on the Shelton case, told me, the issues after the ruling are “as clear as mud.” If you’re unsure of what the ruling means for you or your loved one, we recommend contacting your attorney to discuss the issues further.

Of course, if you have any questions about FAMM, please feel free to call me at (352) 682-2542, or email me at gnewburn@famm.org.


Thanks for your support!



Greg Newburn

Director, Florida Project

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If We Said it Once, We Said it A Million Times – There’s Corruption in Everything

Former Pennsylvania juvenile court judge, Mark Ciavarella, has been sentenced to 28 years in prison.

Ciavarella was found guilty of trading convictions for cash, and unjustly sentencing youth to to detention centers whose owners paid him millions in bribe money.

A federal judge tossed a plea deal that would have limited the sentence to 87 months. The frightening story of the deeply corrupt judge made headlines when Ciavarella was confronted by Sandy Fonzo outside the Pennsylvania courthouse where he had been convicted. Ciavarella had sentenced Fonzo’s 17-year-old son to six months in jail despite having no criminal record on charges of possession of drug paraphernalia, a charge that often results in only a fine for first time offenders, and especially for minors.

According to Fonzo, her son, who had no prior record, was never able to recover and eventually took his own life.

“He (Ciavarella) killed his spirit,” Fonzo said at the time, “He crushed him, and he didn’t help him.” Fonzo said her son was full of resentment and pent-up anger after being sent to the detention center.

Another Corrupt Judge

Judge Ciavarella


The story takes on greater horror when you learn about the levels of sexual abuse present in the prison system, especially in juvenile detention centers where inmates are even more vulnerable to abusive guards:

Across the country, 12.1 percent of kids questioned in the BJS survey said that they’d been sexually abused at their current facility during the preceding year. That’s nearly one in eight, or approximately 3,220, out of the 26,550 who were eligible to participate. The survey, however, was only given at large facilities that held young people who had been “adjudicated”—i.e., found by a court to have committed an offense—for at least ninety days, which is more restrictive than it may sound. In total, according to the most recent data, there are nearly 93,000 kids in juvenile detention on any given day. 19 Although we can’t assume that 12.1 percent of the larger number were sexually abused—many kids not covered by the survey are held for short periods of time, or in small facilities where rates of abuse are somewhat lower—we can say confidently that the BJS’s 3,220 figure represents only a small fraction of the children sexually abused in detention every year.

What sort of kids get locked up in the first place? Only 34 percent of those in juvenile detention are there for violent crimes. (More than 200,000 youth are also tried as adults in the US every year, and on any given day approximately 8,500 kids under eighteen are confined in adult prisons and jails. Although probably at greater risk of sexual abuse than any other detained population, they haven’t yet been surveyed by the BJS.) According to the National Prison Rape Elimination Commission, which was itself created by PREA, more than 20 percent of those in juvenile detention were confined for technical offenses such as violating probation, or for “status offenses” like missing curfews, truancy, or running away—often from violence and abuse at home. (“These kids have been raped their whole lives,” said a former officer from the TYC’s Brownwood unit. 20) Many suffer from mental illness, substance abuse, and learning disabilities.

Any judge who would condemn children to these odds in order to line their pockets deserves the inside of a prison cell. The federal judge was right to toss out the plea deal. Ciavarella doesn’t deserve a bargain. He didn’t give any leniency to the kids he sold.

I’m not much for retributive justice, but a part of me likes to think that he’s getting what’s coming to him now that he’s on the inside of the American prison system looking out.

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Harsh Federal Prison Sentence of the Week

United States Attorney Stephanie A. Finley announced today the sentencing of Dr. Allison Hargrave, 40, of Lafayette, La., a former counselor at Ascension Episcopal School in Lafayette. U.S. District Judge Richard T. Haik sentenced Hargrave to 30years in prison followed by 20 years supervised release for attempting to entice a minor to engage in criminal sexual activity. The judge also ordered Hargrave to pay restitution in the amount of $279, 454.00 to the minor victim. According to court testimony, Hargrave, who was a counselor and yoga instructor at Ascension Episcopal School, began counseling a 14-year old minor female in the spring of 2009.

The relationship between the defendant and the minor female continued through the summer of 2009. In the fall of 2009, Hargrave began texting and emailing the minor female student, graphically discussing engaging in sexual activities with the minor and making plans to meet the minor to engage in the sexual activities. In the fall of 2009, the defendant raped the minor female in a medical office in Lafayette, La. Hargrave continued to sexually exploit the minor female throughout 2009 and into January 2010.

After engaging in sexual activities during this time, Hargrave continued to text and email the minor female, graphically discussing matters of a sexual nature. United States Attorney Stephanie A. Finley stated: “This case reflects the serious consequences and fallout of individuals who sexually abuse minors. The harm done to children is long range and often irreversible. The actions of this defendant are disturbing and the sentence is justified.

This case is a testament to the hard work of our Project Safe Childhood Coordinator, Assistant U.S. Attorney Luke Walker, and the Federal Bureau of Investigation, Lafayette Resident Agency. My office is committed to protecting the children of this district by vigorously prosecuting those who try to exploit them. We will use all legal means to our avail to bring them to justice. ” The case was investigated by the Federal Bureau of Investigation, Lafayette Resident Agency, and is being prosecuted by Assistant United States Attorney J. Luke Walker.

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Kudos to Delaware

WILMINGTON — The state of Delaware is undertaking a study of its criminal justice system to find ways to slow prison growth and prevent ex-convicts from committing new crimes. The U.S. Department of Justice has selected Delaware as a “Justice Reinvestment” site to evaluate what’s right and wrong about the current system. Gov. Jack Markell established a task force Monday that will use evidence-based data to suggest ways to reduce recidivism and improve public safety. The recommendations could lead to changes in state law.

The federal government, which is paying for the six-month study, has hired New York-based Vera Institute of Justice to conduct the review in partnership with a task force chaired by Lt. Gov. Matt Denn. Law enforcement officials said they’re not ruling out any idea, including building additional prisons. “If you tell us that what would be more effective is more prison cells, we’re in,” Chief Deputy Attorney General Charlie Butler said. “I’m not afraid to build more prisons. I’m not afraid to advocate for that. I think that’s good policy.” But “if the science” says sustained incarceration isn’t working, Butler said, the state’s prosectors would accept that finding as well. “We want to know what works and when you tell us, we’ll do everything we can to make that happen,” Butler said. The Vera Institute of Justice has worked on similar initiatives in Alabama and Louisiana, where a commission is considering changes to sentences and probation practices. The end goal is to find new ways to control escalating costs of correcting bad behavior, Markell said. “All of these approaches are trying to make sure that the money spent in the corrections system is spent in the most efficient way possible,” said Julie James, senior policy associate at the Vera Institute of Justice. The cost for Delaware taxpayers to support the criminal justice system has skyrocketed over the past 10 years.

Despite cutbacks in recent years, the Department of Correction’s $254 million budget for the 2012 fiscal year is up 40 percent from 2002. The annual cost to incarcerate an inmate in Delaware rose from $28,000 in 2005 to $34,000 in 2010, according to the Department of Correction. The Department of Safety and Homeland Security, which included the Delaware State Police, also has seen its budget rise by 40 percent over the past 10 years. Even after the Legislature eliminated the Board of Parole’s $500,000 budget this year, the state’s legal budget that has funded parole oversight and the Attorney General’s and Public Defender’s offices has increased 54 percent over 10 years, state data show. Markell signed an executive order Monday establishing the Delaware Justice Reinvestment Task Force with 18 members, including lawmakers from both political parties, judges and municipal police chiefs. Denn indicated he will keep the task force focused on the goal of improving public safety in Delaware and not delve into turf wars that are common in the criminal justice system. “There are going to be times over the next several months where people are going to have to put egos aside,” Denn said. “And there are going to be times where people are going to have to take political risks.”

Contact Chad Livengood at 324-2832 or clivengood@delawareonline.com.

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Drug Charges Yield a Twenty-Two Year Federal Prison Sentence for Lincoln, Nebraska Man

The harshest sentence of the week goes out to the state of Nebraska for handing down 22 years on drug charges. A Lincoln man with a criminal history in Grand Island has been sentenced to 22 years in federal prison for drug possession. Carlos Ponce, 25, was sentenced on Thursday in U.S. District Court to 22 years in prison for possession of 5 grams or more of methamphetamine with the intent to distribute. In addition, he must serve five years of supervised release following his prison term, according to a press release from the U.S. attorney’s office. On July 7, 2010, Ponce was contacted by members of the Lincoln/Lancaster County Drug Task Force in Lincoln. He had about an ounce of meth in his possession. Inside the vehicle, police found several hundred dollars, a digital scale with drug residue and other items, according to the press release. A federal arrest warrant was later issued based on that incident, and Ponce was arrested in Grand Island on Sept. 2, 2010. Grand Island police reported they had documented Ponce to be either a member or an associate of the East Side Locos gang, according to the press release. He was convicted following a jury trial on April 20.

Ponce’s criminal history in Grand Island includes convictions for robbery, operating a vehicle to avoid arrest and theft. He was sentenced in June 2007 to two to three years in prison and was released in May 2010. He was also believed to be the intended target of a shooting last summer. According to a search warrant affidavit regarding the Aug. 29, 2010, incident, the shooting occurred outside a residence at the Bellwood Square Apartments. It was related to an ongoing feud between two gangs. Members of the Humphrey/Pacoima Boys were sitting outside the apartment complex when Carlos Ponce and several other East Side Locos gang members drove past on Wedgewood Drive in a dark-colored two-door coupe. The people in the car yelled toward the people sitting outside the building, trying to provoke a fight, according to the search warrant affidavit. Later, two people drove by a black, two-door vehicle that resembled Ponce’s car, and they were shot at by members of the Humphrey/Pacoima Boys, who were still sitting outside the apartment complex, according to the affidavit.  No one was seriously injured in the incident.

Ponce’s juvenile record includes convictions in Hall County Juvenile Court for two counts of aiding and abetting attempted first-degree assault, two counts of aiding and abetting the use of a gun to commit a felony and one count of aiding and abetting the unlawful discharge of a gun. According to police, Ponce was a passenger in a vehicle driven by another teen in May 2004. Ponce and several other teens encouraged the driver to fire a gun at two men standing in a yard. No one was injured in the shooting.

By Sarah Schulz
Published: Friday, July 22, 2011 10:46 AM CDT
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