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A fall from grace is both difficult to watch and morbidly fascinating. Whether the subject is a person of high regard or a greatly respected company, often it is impossible to look the other way.
Such is the case with Johnson & Johnson JNJ 0.35355414960922965% Johnson & Johnson U.S.: NYSE USD107.86 0.38 0.35355414960922965% /Date(1416607462190-0600)/ Volume (Delayed 15m) : 8140304 AFTER HOURS USD107.85 -0.01 -0.009271277582050807% Volume (Delayed 15m) : 277074 P/E Ratio 17.566775244299674 Market Cap 301912017894.965 Dividend Yield 2.5959577229742257% Rev. per Employee 579407 More quote details and news » in Barron's latest ranking, The World's Most Respected Companies. Few firms, with the possible exception of banks, have fallen harder in the eyes of our respondents since our survey of professional money managers was launched seven years ago. J&J (ticker: JNJ) has always ranked No. 1 or No. 2 in garnering respect from investors—until this year, that is. After struggling with quality-control issues, the New Brunswick, N.J.-based health-care giant has tumbled all the way to No. 25 among the world's 100 largest public companies, hanging on to the list's first quartile by its bloodied fingernails.
JNJ's nosedive contrasts sharply with Apple' AAPL 0.1375634081334365% Apple Inc. U.S.: Nasdaq USD116.47 0.16 0.1375634081334365% /Date(1416607204671-0600)/ Volume (Delayed 15m) : 56293765 AFTER HOURS USD116.34 -0.13 -0.11161672533699665% Volume (Delayed 15m) : 885533 P/E Ratio 17.989589608142964 Market Cap 683077903760.791 Dividend Yield 1.6141495664119516% Rev. per Employee 1969180 More quote details and news » s (AAPL) staying power, as the fabled inventor of the iPod, iPhone and iPad tops our annual ranking for the second consecutive year. What's more, the bouquet of accolades thrown at Apple might make even Steve Jobs blush. America's money managers praise the company he built as "visionary," "courageous," "innovative" and possessed of a "strong corporate culture," which has fostered "consistent execution." No matter that some say Wall Street's near-religious devotion to Apple, coupled with the stock's 53% rally last year, could be setting the company and its shares up for a fall. For now, Apple reigns supreme in commanding investors' respect.
Just as some companies fall out of favor, others, like Amazon.com AMZN 0.6322986627942155% Amazon.com Inc. U.S.: Nasdaq USD332.63 2.09 0.6322986627942155% /Date(1416607206987-0600)/ Volume (Delayed 15m) : 4408129 AFTER HOURS USD332.51 -0.12 -0.03607612061449659% Volume (Delayed 15m) : 58458 P/E Ratio N/A Market Cap 154009692019.988 Dividend Yield N/A Rev. per Employee 726743 More quote details and news » (AMZN) gain greater esteem from investors. The online retailer is No. 2 this year, up from No. 10 in 2010. Berkshire Hathaway BRKA 0.7720504009163803% Berkshire Hathaway Inc. Cl A U.S.: NYSE USD219935 1685 0.7720504009163803% /Date(1416607256265-0600)/ Volume (Delayed 15m) : 229 P/E Ratio 17.459315710089705 Market Cap 361363301729.253 Dividend Yield N/A Rev. per Employee 640606 More quote details and news » (BRKA), a perennial at the pinnacle, is No. 3, up from No. 5, in a vote of confidence for founder Warren Buffett's leadership. IBM IBM 0.17430278884462153% International Business Machines Corp. U.S.: NYSE USD160.92 0.28 0.17430278884462153% /Date(1416607429471-0600)/ Volume (Delayed 15m) : 4045353 AFTER HOURS USD161.15 0.23 0.14292816306239126% Volume (Delayed 15m) : P/E Ratio 13.157808667211775 Market Cap 197865186741.902 Dividend Yield 2.734277902063137% Rev. per Employee 229711 More quote details and news » (IBM) maintains its fourth-place status, while McDonald's MCD 0.041390728476821195% McDonald's Corp. U.S.: NYSE USD96.68 0.04 0.041390728476821195% /Date(1416607568487-0600)/ Volume (Delayed 15m) : 5107624 AFTER HOURS USD96.68 % Volume (Delayed 15m) : P/E Ratio 18.8828125 Market Cap 94089361034.303 Dividend Yield 3.5167563094745553% Rev. per Employee 63550.7 More quote details and news » (MCD) cracks the top five for the first time ever, edging up from No. 7 in a vote of confidence for the company's management and strategy. Even burgers, well done, can be as sexy as iPads.
EACH YEAR Barron's surveys professional money managers about their views of the world's 100 largest companies, based on total stock-market capitalization at year end, as determined by Dow Jones Indexes. This year's survey, conducted with the help of Beta Research in Syosset, N.Y., elicited responses from 92 investors across the country, ranging from proprietors of small advisory firms to the chief investment officers of money-management giants overseeing billions of dollars.
Participants were asked to select one of four statements reflecting their view of each company: Highly Respect, Respect, Respect Somewhat or Don't Respect. A point value was assigned to each response, with the highest accorded to Highly Respect, and a mean score was tabulated for each company. In the case of ties, the higher ranking went to the company with the most Highly Respect votes. The managers also were asked to rank the factors they consider most important in determining respect for corporations, and were invited to contribute comments on individual companies.
BP BP 1.5561407708881974% BP PLC ADS U.S.: NYSE USD42.42 0.65 1.5561407708881974% /Date(1416607408067-0600)/ Volume (Delayed 15m) : 5828193 AFTER HOURS USD42.42 % Volume (Delayed 15m) : P/E Ratio 13.630667395006586 Market Cap 128253496292.306 Dividend Yield 5.657708628005658% Rev. per Employee 4598520 More quote details and news » (BP), the British oil producer, fell more places than J&J, but already had been held in only middling regard. No. 47 in 2010, it slid to No. 95, where it rubs elbows with governance-challenged Russian companies, not to mention Citigroup C 0.2615844544095665% Citigroup Inc. U.S.: NYSE USD53.66 0.14 0.2615844544095665% /Date(1416607258818-0600)/ Volume (Delayed 15m) : 15010632 AFTER HOURS USD53.67 0.01 0.018635855385762207% Volume (Delayed 15m) : P/E Ratio 18.376712328767123 Market Cap 162562327609.026 Dividend Yield 0.07454342154304883% Rev. per Employee 372972 More quote details and news » (C) and Bank of America bac 0.7058823529411765% Bank of America Corp. U.S.: NYSE USD17.12 0.12 0.7058823529411765% /Date(1416607349338-0600)/ Volume (Delayed 15m) : 61761379 AFTER HOURS USD17.12 % Volume (Delayed 15m) : P/E Ratio 39.81395348837209 Market Cap 180041636169.506 Dividend Yield 1.1682242990654206% Rev. per Employee 404992 More quote details and news » (BAC), ranked No. 96 and No. 97, respectively.
Procter & Gamble PG 0.14694246637278174% Procter & Gamble Co. U.S.: NYSE USD88.6 0.13 0.14694246637278174% /Date(1416607376069-0600)/ Volume (Delayed 15m) : 8829100 AFTER HOURS USD88.6 % Volume (Delayed 15m) : P/E Ratio 23.251541792415694 Market Cap 239407730105.409 Dividend Yield 2.9056433408577877% Rev. per Employee 710068 More quote details and news » (PG) consistently has ranked among the top five in commanding respect, but not this year; it clocks in at No. 10, down from No. 3. Investors may be disappointed that its shares rose only 6% last year, and concerned that P&G's higher-priced products could be less competitive in a post-recession world.
What Inspires Respect?
A sound business strategy trumps management for our respondents. "Even the best CEO can't make a huge success out of a flawed business strategy," says Harbor Advisory's Jack DeGan.
Toyota Motor TM 1.3113932509188106% Toyota Motor Corp. ADS U.S.: NYSE USD121.29 1.57 1.3113932509188106% /Date(1416607466297-0600)/ Volume (Delayed 15m) : 920484 AFTER HOURS USD121.3 0.01 0.008244702778464836% Volume (Delayed 15m) : P/E Ratio 10.09219350651512 Market Cap 206100323720.686 Dividend Yield N/A Rev. per Employee 749605 More quote details and news » (TM) also lost face, plummeting to No. 47 from last year's No. 6, as investors reacted to the company's recalls of various models for mechanical problems in 2009-10. And Goldman Sachs GS -0.08432147562582346% Goldman Sachs Group Inc. U.S.: NYSE USD189.59 -0.16 -0.08432147562582346% /Date(1416607211551-0600)/ Volume (Delayed 15m) : 2310437 AFTER HOURS USD189.6 0.01 0.005274539796402764% Volume (Delayed 15m) : P/E Ratio 10.587716261043415 Market Cap 82575162647.2315 Dividend Yield 1.2658895511366632% Rev. per Employee 1168880 More quote details and news » (GS), the global investment bank that appeared on the list for the first time last year, promptly fell this year to No. 66 from No. 30, a remarkable drop for a company considered uniquely successful by investors around the world just a few short years ago.
Moving up sharply on in our survey are companies such as No. 7-ranked 3M MMM 0.5020080321285141% 3M Co. U.S.: NYSE USD160.16 0.8 0.5020080321285141% /Date(1416607303912-0600)/ Volume (Delayed 15m) : 2371642 AFTER HOURS USD160.16 % Volume (Delayed 15m) : P/E Ratio 21.526881720430108 Market Cap 102633568538.155 Dividend Yield 2.135364635364635% Rev. per Employee 357190 More quote details and news » (MMM); No. 21-ranked Siemens (SI), and Daimler (DDAIFF), the German automotive leader, now No. 30. The French luxury-goods conglomerate LVMH Moët Hennessy Louis Vuitton (MC.France) is ranked No. 32, up from No. 52, while Britain's Vodafone VOD 0.7627118644067796% Vodafone Group PLC ADS U.S.: Nasdaq USD35.67 0.27 0.7627118644067796% /Date(1416607200201-0600)/ Volume (Delayed 15m) : 4008256 AFTER HOURS USD35.67 % Volume (Delayed 15m) : P/E Ratio 1.2236089872925608 Market Cap 94659516049.1766 Dividend Yield 3.1648107653490327% Rev. per Employee 746251 More quote details and news » (VOD) is No. 36, a long way up from last year's No. 65.
Each of these companies won more respect for different reasons, but the collective advance of the four European outfits speaks to another of this year's themes: a 50% increase, to 15, in the number of foreign companies among the top 40 names on the list.
WITH THE EXCEPTION of BP, our cellar dwellers aren't new to their lowly position. Russian companies consistently have been dissed by U.S. investors, and rightly so, for poor governance, corruption and Russia's disregard of the rule of law. Gazprom (GAZP.Russia), the energy-exploration giant, is No. 100, a short but ignominious drop from last year's No. 99. Its replacement in the penultimate position is Sberbank (SBER03.Russia), down from No. 97, while Rosneft (ROSN.Russia), another energy producer, stays at No. 98.
What determines respect? "Sound business strategy" gets the most votes this year, from 32% of money managers, eclipsing "strong management," which was most important to 28% of respondents but last year ranked No. 1. That is a "healthy and important change," says Jack De Gan, chief investment officer at Harbor Advisory in Portsmouth, N.H. "Even the best CEO can't make a huge success out of a flawed business strategy."
De Gan thinks former Fidelity fund manager Peter Lynch said it best when criticizing the cult of star CEOs: Go for a business that any idiot can run, because sooner or later any idiot probably is going to be running it.
Interestingly, only 12% of money managers now consider "ethical business practices" the first determinant of respect, down from 20% last year. Could it be that memories of fraudulent behavior, financial shenanigans and other lapses in ethics are fading right along with memories of the credit crunch, bear market and Great Recession of 2008-09?
For Lloyd Khaner of New York's Khaner Capital, management still is tops. "Management is the single most important factor" in determining a company's direction and success, he says. "If I take a torpedo because of management [I've invested in], there's no one to blame but myself."
Jack Oliver, head of money manager RBO in St. Helena, Calif., agrees. "Strong management will drive all those other components. It will be ethical and innovative…. It's an intangible asset on the balance sheet."
SOME MONEY MANAGERS cite respect as the first cut in their investment process. But others say respect is the result of strong investment performance, which reflects a multitude of smart decisions made by management and employees. Respected companies treat their shareholders, customers and employees well, and companies whose shares go up seem to garner ever greater respect. "You'll get respect if your stock is up," says Paul Jackson of Paul Jackson & Associates in Auburndale, Mass. "It often comes down to stock price."
For Apple, it is hard to know where respect ends and blind adulation begins. In the past five years Apple has shown "an ability to execute and have the pulse of the world consumer," says Seth Shalov, a portfolio manager at MAI Wealth Advisors in Cleveland.
Apple has redefined the consumer-electronics market, inventing must-have telecommunications gear and pocketing additional revenue from the sale of iPhone and iPad applications, or apps. "Steve Jobs has revived a culture that emphasizes vision and is highly innovative," says Tom Weary of Pacific Income Advisers in Santa Monica, Calif.
How Apple fares with Jobs on a medical leave of indeterminate duration is another matter. Although the company has a deep bench, the law of large numbers may begin to work against it. With a huge market capitalization of $328 billion, the company might languish a while without Jobs, Shalov says.
AMAZON.COM IS ANOTHER COMPANY that has taken full advantage of the Internet, becoming the world's largest online retailer. Indeed, it is one of the few healthy survivors of the dot-com boom of a decade ago. Dismissed as a fad in that bubble era, even by this publication, Amazon has gone on to generate more than $34 billion in annual revenue and command a market value of nearly $84 billion.
"It is very profitable and always investing for a better consumer experience…adding [retail] categories all the time," says Jim O'Donnell at San Francisco-based Forward Management. Amazon has a "phenomenal" core business and is going global, he adds.
"It surprises you on innovation, too," says Pacific Income's Weary.
As for Berkshire Hathaway, there is little to add about its consistently high ranking in our survey and many others. The company garners respect for its lengthy history of operating and investment successes, and that leads straight to the boss—the plainspoken, octogenarian, Cherry-Coke sipping Wall Street legend, Warren Buffett.
In the throes of the financial crisis, his investments in Goldman Sachs and General Electric GE 0.521415270018622% General Electric Co. U.S.: NYSE USD26.99 0.14 0.521415270018622% /Date(1416607225263-0600)/ Volume (Delayed 15m) : 35268834 AFTER HOURS USD26.99 % Volume (Delayed 15m) : P/E Ratio 18.432015297411734 Market Cap 271038717398.791 Dividend Yield 3.260466839570211% Rev. per Employee 474919 More quote details and news » (GE) helped stabilize both companies and give the financial markets a much-needed shot of confidence, notes George Mussalli, a money manager at PanAgora Asset Management in Boston. Buffett, he says, "is like the market's Good Housekeeping Seal of Approval."
For that and other reasons, Buffett's 13EEE-size investment shoes will be difficult to fill when the master steps down. "Can Berkshire survive after Buffett's exit?" asks David Hartzell, CEO of Cornell Capital Management in upstate New York. "Yes, but it won't be the same company. This is even more of a question than at Apple. Is Berkshire's bench enough to hold an oddball conglomerate together?"
Good question.
Institutional investors' abiding fondness for IBM suggests the company finally is achieving some lasting recognition for a once-controversial switch made years ago—to emphasize software and services over mainframes and other computers. Respect, hard won and long in the cultivating, doesn't always come from meeting quarterly earnings estimates or achieving other short-term goals that Wall Street demands, survey-takers noted.
With the Street focused on IBM's transformation and the then-controversial disposal of its legacy hardware business, the company didn't receive the credit it deserved for steady earnings growth without major profit disappointments. "It is a great example of a company that has moved to services from hardware, adding value and longevity," says Peter Scholla, a partner at Global Investment Adviser in North Palm Beach, Fla.
AND THEN THERE ARE HAMBURGERS, lots and lots of them, made and sold by McDonald's, another belated recipient of much-deserved respect. The company's image on Main Street as the biggest fast-food chain in the world doesn't do it justice, according to our respondents. On Wall Street, McDonald's is viewed as a company that changed its spots for the better back in 2002-03, moving away from a single-minded focus on unit growth to a more mature approach that balances growth with the return of cash to shareholders. Much as investors like McDonald's appetizing 3.3% dividend yield, they also appreciate that it has responded effectively to changes in society's eating and drinking habits.
"What business is more up, down and risky than the restaurant business?" asks Cornell Capital's Hartzell, a big fan of the stock. "People think of McDonald's as a burger maker, but they've got specialty coffees, salads and sundaes now"— a testament to the company's ability to reinvent itself.
That brings us to companies such as J&J and Toyota, which must reinvent themselves quickly, or at least make some big changes to get back into investors' good graces.
The litany of Johnson & Johnson problems that have exploded into the news in the past 18 months is too lengthy to recount, but here are a few: Just last month, a Texas federal jury ordered the company to pay $482 million in patent-infringement damages. J&J's once-pristine respect score also has been hurt by a string of product recalls at various subsidiaries, especially some that sell children's medicines and the company's flagship over-the-counter painkiller, Tylenol. When it comes to respect from investors, the message should be clear: Don't mess with kids' drugs.
Johnson & Johnson has pulled almost 47 million units of over-the-counter products such as Tylenol, Benadryl, Sinutab and Sudafed, due to quality-control problems. In last year's fourth quarter, the company took a painful $922 million charge, representing the impact of litigation settlements, product-liability expenses and costs associated with the recall of certain hip implants at DePuy, another subsidiary.
J&J has had to suspend or alter activities at several plants, which could affect this year's sales. It has acknowledged that consumer trust of its products "has truly been tested." In its annual report three years ago, the company said it would focus on execution. "That's not what they've done," says Marc Heilweil at Spectrum Advisory Services in Atlanta.
Johnson & Johnson and McDonald's are a study in contrasts, says Fla Lewis, a principal at Weybosset Research & Management in Providence, R.I. The fast-food chain has kept its eye on the ball and protected its brand, while "at J&J it seems to be one thing after another. They don't seem to be able to wrestle it down."
In an e-mail Friday in response to a query from Barron's, CEO Bill Weldon noted that, until the recent setbacks, the company had built a strong reputation in the past 125 years. And he added: "We are working diligently to overcome our recent problems to ensure only the highest-quality products reach our customers—the first step to earning back their trust and confidence."
One consolation for investors is that Johnson & Johnson's earnings have grown, even through the company's troubles. Earnings rose to $4.78 a share last year from $4.40 in 2009, even though revenue was basically flat at $61.6 billion. J&J also pays a dividend of $2.16 a share, for a yield of 3.5%.
IN MANY WAYS, our survey of investor respect is an accurate barometer of public perceptions about a number of big companies—and a warning to those in need of change. Take Toyota, another long-trusted maker of familiar products that also was rocked by a series of recalls beginning in late 2009. The Japanese company recalled about eight million vehicles amid allegations of defective floor mats and accelerator pedals.
Toyota was tarnished not only by the need for a recall but "the way they handled it," one money manager wrote. "They didn't address as quickly as they could have."
The timing was bad, a lost opportunity. "It was a perfect time to screw up, right when General Motors [GM] and Ford f -0.19404915912031048% Ford Motor Co. U.S.: NYSE USD15.43 -0.03 -0.19404915912031048% /Date(1416607266031-0600)/ Volume (Delayed 15m) : 24577093 AFTER HOURS USD15.43 % Volume (Delayed 15m) : P/E Ratio 9.828025477707007 Market Cap 59385242154.4717 Dividend Yield 3.240440699935191% Rev. per Employee 802447 More quote details and news » [F] were flat on their backs," quips Paul Jackson.
Yet the well of respect for Toyota hasn't run dry, as our respondents indicated the company would recover from its current woes. Just last Tuesday, for instance, an investigation by NASA engineers showed no link between electronic throttles and unintended acceleration in Toyota vehicles, something that should help the auto maker recover its reputation.
After several years in the doghouse, General Electric (GE) is one company beginning to see some daylight. The company rose in our ranking to No. 48 from No. 74 last year. Once the standard-bearer for American capitalism, GE was hurt when its highly leveraged finance unit hit an air pocket amid the financial crisis. The company had to run to Buffett for a major cash infusion.
Since then, GE's core industrial businesses have been on the upswing, and the company has reduced its reliance on GE Capital, its finance unit. It also sold off its 51% stake in the NBC Universal entertainment business. Despite the improvements, some investors still are calling for GE to be broken up.
GE epitomizes bureaucratic thinking, says John Campbell of Cornerstone Investment Partners in Atlanta. "It is hard to understand where the value is being created…by largely unrelated businesses," he says.
PanAgora's Mussalli agrees, noting the company's collection of businesses "perpetually underperform." The various divisions could do much better alone, and "a break-up could unlock value," he says.
Both money managers indicated they "don't respect" GE, although plenty of others now do.
THE DOGHOUSE, reputational and otherwise, is like an airport hotel: Companies move in and out, doing their best not to linger long. For U.S. and Russian banks, however, it is like a roach motel: They get in, but can't seem to get out.
At the recent World Economic Forum in Davos, Russian President Dmitry Medvedev expressly conceded that the country's problems hinder investment and vowed to improve the investment climate. That is a big job and won't happen overnight.
American banks such as Citigroup and Bank of America also are likely to forgo investors' respect for a while longer, given their dismal performance at the depths of the global financial crisis. "They took TARP [Troubled Asset Relief Program] money and their reputations disintegrated," says David Corbin, CEO of Corbin & Co. in Fort Worth, Texas. "In some cases there also was highly questionable behavior. Some had great legacies that have suffered."
The anger still smolders over the role of big banks in helping to foment and deepen the crisis. "The amount of arrogance [on the part of banks] towards the U.S. taxpayer is extraordinary," says James Vanasek of VN Capital Management in New York. "Citi was a weekend away from bankruptcy but kept on insisting nothing was wrong. And no one was punished at the top."
Some banks have done better than others, however. JPMorgan Chase JPM 0.5489021956087824% JPMorgan Chase & Co. U.S.: NYSE USD60.45 0.33 0.5489021956087824% /Date(1416607215469-0600)/ Volume (Delayed 15m) : 12107644 AFTER HOURS USD60.45 % Volume (Delayed 15m) : P/E Ratio 11.112132352941176 Market Cap 225973525776.817 Dividend Yield 2.6468155500413566% Rev. per Employee 400580 More quote details and news » (JPM), for example, jumped to No. 14 this year from No. 21, mainly because of the respect accorded its popular CEO, Jamie Dimon. "The Bear Stearns merger was thrust upon him, but he made sure it wasn't going to hurt his company," says Thomas Goldsmith of Flagship Capital in Media, Pa., "He's stubbed his toe from time to time but learned from it."
BECAUSE OUR RANKING COVERS only the 100 largest public companies in the world, changes in share price and market capitalization determine which companies are on the list and which are excluded. This year 11 new names joined the ranking, replacing companies whose relative market value shrank in 2010.
The largest company in the world, No. 11-ranked Exxon Mobil xom 1.0331872260488415% Exxon Mobil Corp. U.S.: NYSE USD96.81 0.99 1.0331872260488415% /Date(1416607214258-0600)/ Volume (Delayed 15m) : 11892183 AFTER HOURS USD96.84 0.03 0.030988534242330338% Volume (Delayed 15m) : P/E Ratio 12.187629826394572 Market Cap 409944723621.756 Dividend Yield 2.850945150294391% Rev. per Employee 5338160 More quote details and news » (XOM), had a market cap of $368.2 billion as of Dec. 27, up 14% from a year earlier. The smallest on the list, Germany's E.ON (EONGY), had a market cap of $60.2 billion. Visa V 1.0132316128263201% VISA Inc. Cl A U.S.: NYSE USD254.22 2.55 1.0132316128263201% /Date(1416607438975-0600)/ Volume (Delayed 15m) : 2947228 AFTER HOURS USD254.25 0.03 0.011800802454566911% Volume (Delayed 15m) : P/E Ratio 30.49042301833839 Market Cap 157628349096.893 Dividend Yield 0.7552513570922823% Rev. per Employee 1337050 More quote details and news » (V) didn't make the cut this year, but Colombia's state-run oil company Ecopetrol ec 0.9542743538767395% Ecopetrol S.A. ADS U.S.: NYSE USD25.39 0.24 0.9542743538767395% /Date(1416607319044-0600)/ Volume (Delayed 15m) : 918459 AFTER HOURS USD25.39 % Volume (Delayed 15m) : P/E Ratio 9.425696996695994 Market Cap 52127380099.888 Dividend Yield N/A Rev. per Employee 4214430 More quote details and news » (EC) did. It ranked No. 93.
In 2010 the average mean score rose sharply, to 2.25 from a lowly 1.87. This year it fell slightly, to 2.12. Among the 89 companies included in both years' surveys, just 33 saw their mean scores rise in 2011, compared with 59 in 2010.
After the past few years of Ponzi schemes and other investment frauds, financial malfeasance and just plain bad execution, the concept of corporate respect arguably is more relevant than ever. That should be a wake-up call to all the companies whose reputations were dented by the financial crisis and other crises, both external and of their own making.
It is a cliché to say that respect is hard to earn but easy to lose. Yet that doesn't detract from its importance for these companies, and all companies. When will J&J, Toyota and even Citi be welcomed back into the market's good graces? Next year's Most Respected survey can't come fast enough.
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Wednesday, August 20, 2014
"15 years without an execution: the death penalty in Pennsylvania"
The title of this post is the headline of this local article highlighting Pennsylvania's remarkably long de facto moratorium on executions despite sending a significant number of murderers to death row." Here are the details:
Pennsylvania's Governor Tom Corbett has issued his thirty-sixth execution warrant. Michael Parrish, from Monroe County, is scheduled for execution in October after being convicted of killing his girlfriend and baby.
But according to experts, if the current trend continues, it could be decades before that ever happens. "Anyone who fights the death penalty today can go on for 15 to 25 years on death row," said Northampton County District Attorney John Morganelli.
Pennsylvania ranks fourth in the United States for the most people on death row. Close to 200 people currently have a death sentence, according to the Pennsylvania Department of Corrections. But the state has executed just three people in the last 35 years.
Morganelli said lengthy appeals are a factor, but not the sole, or biggest influence. "We have federal judges who constantly block these executions…It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty," Morganelli said. Other experts said overturned death sentences are also a reason.
Notably, Pennsylvania's modern experience with the death penalty seems somewhat comparable to what has transpired in California; the facts and factors in Pennsylvania thus seem similar to those stressed in Jones v. Chappell, last month's controversial federal district court ruling that California's death penalty is unconstitutional under Eighth Amendment (basics here). I would think more than a few savvy defense lawyers representing death row defendants in Pennsylvania are likely adding Jones claims to their appeals.
Some related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
August 20, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)
Tuesday, August 19, 2014
Washington appeals court strikes down sign-holding shaming sanction as statutorily unauthorized
Regular readers know I am always intrigued by novel punishments, especially in the form of shaming sanctions. Consequently, I was pleased when a helpful reader altered me to a notable new Washington appellate court opinion striking down a notable shaming sanction. Here is how the short opinion in Washington v. Button, No. 44036-9-II (Wash. App. Div. II Aug. 18, 2014) (available here), gets started:
Charlotte Ann Button appeals a sentence condition requiring her to stand on a street corner holding a sign stating, "I stole from kids. Charlotte Button." Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign-holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign-holding condition from her judgment and sentence.
August 19, 2014 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)
"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"
The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III. Here is the abstract:
This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.
There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.
Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that "within the category of capital crimes, the death penalty must be reserved for 'the worst of the worst.'" For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime "measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment." Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.
Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that "freakishly rare" sentences of death are likely to be arbitrary.
August 19, 2014 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0) | TrackBack (0)
Senator Whitehouse defends risk-assessment tools for some sentencing determinations
The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making. Here is the full text of the published letter:
In "Sentencing, by the Numbers" (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges' use in sentencing of predictive tools to gauge an offender's risk of recidivism. But let's not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.
The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.
States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they'll reoffend. That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing"
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
August 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Is an end to the modern drug war the only real way to prevent future Fergusons?
The question in the title of this post is prompted by this provocative new commentary by John McWhorter in The New Republic. The piece is headlined "There Is Only One Real Way to Prevent Future Fergusons: End the War on Drugs," and here are excerpts:
At times like this, with the raging protest in Ferguson, an implication hangs in the air that these events are leading somewhere, that things are about change. The saddest thing, however, is that this is, indeed, a "time like this" — one of many, before and certainly to come. It is impossible not to conclude that what happened to Michael Brown in Ferguson is now status quo, not a teaching lesson to move us forward....
We don't know the details yet, but it's apparent that, in spite of all we went through with [Trayvon] Martin so recently, in a clinch — the mean, messy place where these things always happen — the Ferguson cop Darren Wilson assumed that a big black guy was trouble, serious trouble, and shot him dead. It's what happens in that clinch that matters, and we can now see that no amount of articulate protest can cut through such visceral human tendencies as bias and fear....
So, what will really make a difference? Really, only a continued pullback on the War on Drugs. Much of what creates the poisonous, vicious-cycle relationship between young black men and the police is that the War on Drugs brings cops into black neighborhoods to patrol for drug possession and sale. Without that policy — which would include that no one could make a living selling drugs — the entire structure supporting the notion of young black men as criminals would fall apart. White men with guns would encounter young black men much less often, and meanwhile society would offer young black men less opportunity to drift into embodying the stereotype in the first place.
But that's the long game. In the here and now, we are stuck. Michael Brown was not "it." The journalists assiduously documenting the events in Ferguson can serve as historians, but not as agents of change.
Recent related post:
August 19, 2014 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
Notable new follow-ups to recent ugly executions in Arizona and Ohio
Coincidentally, this week has brought two distinct follow-up article examining the backstories that may have contributed to two distinct ugly executions in Arizona and Ohio. The Arizona follow-up story comes via this new New York Times article headlined "Arizona Loose With Its Rules in Executions, Records Show," and it starts this way:
In an execution in 2010 in Arizona, the presiding doctor was supposed to connect the intravenous line to the convict's arm — a procedure written into the state's lethal injection protocol and considered by many doctors as the easiest and best way to attach a line. Instead he chose to use a vein in an upper thigh, near the groin. "It's my preference," the doctor said later in a deposition, testifying anonymously because of his role as a five-time executioner. For his work, he received $5,000 to $6,000 per day — in cash — with two days for practice before each execution.
That improvisation is not unusual for Arizona, where corrections officials and medical staff members routinely deviate from the state's written rules for conducting executions, state records and court filings show. Sometimes they improvise even while a convict is strapped to a table in the execution chamber and waiting for the drugs coursing through his veins to take effect.
In 2012, when Arizona was scheduled to execute two convicted murderers, its Corrections Department discovered at the last minute that the expiration dates for the drugs it was planning to use had passed, so it decided to switch drug methods. Last month, Arizona again deviated from its execution protocol, and things did not go as planned: The convicted murderer Joseph R. Wood III took nearly two hours to die, during which he received 13 more doses of lethal drugs than the two doses set out by the state's rules.
The Ohio follow-up story comes via this new New Republic article headlined "Exclusive Emails Show Ohio's Doubts About Lethal Injection: The state worried new drugs could make prisoners "gasp" and "hyperventilate" — and used them anyway." Here is how it gets started:
In July 23, Arizona took 117 minutes to execute a convicted murderer named Joseph Rudolph Wood III. It was not the nation's first execution to last that long. In September 2009, Romell Broom entered the Ohio death chamber and exited two hours later still breathing — the only inmate in U.S. history to survive a lethal injection. The executioners had scoured his arms, legs, hands, and ankles for veins in which to stick their needles. But they repeatedly missed the vessels with the IVs. After at least 18 failures, Ohio had no choice but to cancel the execution.
In Wood's execution, the trouble began when the drugs began to flow. Arizona's executioners first injected Wood with a combination of midazolam and hydromorphone, two drugs they had never used before in an execution. When the first dose failed to stop his heart, the executioners administered a second. And then a third. The execution team injected 15 doses in total before a doctor finally pronounced death. An Arizona Republic reporter witnessing the execution said Wood gasped more than 640 times and that he "gulped like a fish on land."
IDespite their different problems, the attempted execution of Broom and the execution of Wood are connected by more than just their lengths. Had executioners in Ohio been able to insert IVs into Broom's veins, Wood's execution might have gone much more smoothly. That's because the Broom debacle led Ohio to write a "Plan B" for lethal injections, introducing into the death chamber for the first time the untested drugs Arizona would use years later to kill Wood. And emails I obtained from Ohio reveal some of the state's internal debates and concerns about these drugs—including fears that an inmate could "gasp" and "hyperventilate" as he died.
IDoctors warned from the beginning that midazolam and hydromorphone could create "a distasteful and disgusting spectacle." And yet the drugs spread from Ohio across the country, revealing the lengths states will go to in order to carry out death sentences despite constant IV trouble, drug shortages, and problematic executions.
August 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Monday, August 18, 2014
More evidence of the poor funtioning of California's crime-and-punishment policies and practices
Over the weekend, the Los Angeles Times published this lengthy and disconcerting article spotlighting yet another aspect of the mess that is California's current sentencing and corrections system. The piece is headlined "Early jail releases have surged since California's prison realignment," and here are some extended excerpts:
Jesus Ysasaga had been arrested multiple times and ordered by the court to keep away from his ex-girlfriend. Two parole boards sentenced him to nearly a year in jail for stalking, drunkenness and battery.
But the Fresno County jail would not keep him. Four times in the summer of 2012, authorities let Ysasaga go, refusing two times to even book him. The jail had no room. Ysasaga's attorney, Jerry Lowe, said the parade of convicted offenders being turned away from the jail was common. "It became quite a joke," he said.
Across California, more than 13,500 inmates are being released early each month to relieve crowding in local jails — a 34% increase over the last three years. A Times investigation shows a significant shift in who is being let out of jail, how early and where.
The releases spring from an effort begun in 2011 to divert low-level offenders from crowded state prisons to local jails. The move had a cascade effect, forcing local authorities to release their least dangerous inmates to make room for more serious offenders. "It changes criminal justice in California," said Monterey County Chief Deputy Edward Laverone, who oversees the jail. "The 'lock them up and throw away the key' is gone."
State and local officials say that they are making every effort to ensure the releases pose little danger to the public, freeing those believed to be the least risky convicts, usually parole violators and those convicted of misdemeanors. But an analysis of jail data has found that incarceration in some counties has been curtailed or virtually eliminated for a variety of misdemeanors, including parole violations, domestic violence, child abuse, drug use and driving under the influence.
In Los Angeles County, with a quarter of California's jail population, male inmates often are released after serving as little as 10% of their sentences and female prisoners after 5%. Fresno County logs show the jail is releasing criminals convicted of crimes that used to rate prison time: fraud, forgery and trafficking in stolen goods.
Law enforcement officials say that criminals have been emboldened by the erratic punishment. "Every day we get guys who show up in the lobby, stoned out of their minds," said one parole agent who did not want to be identified because he was not authorized to speak about the issue. "I'll have 15 arrested, and 12 to 14 will be released immediately."...
For law enforcement agents, the jailhouse revolving door is frustrating.
Leopoldo Arellano, 39, was in and out of custody at least 18 times from 2012 to 2014 for violating parole, criminal threats and at least four incidents of domestic battery, according to Los Angeles County jail logs. San Diego County let parolee Demetrius Roberts go early 12 times; mostly for removing or tampering with his GPS tracker, which he was required to wear as a convicted sex offender.
In Stockton last year, a furor erupted over the repeated releases of Sidney DeAvila, another convicted sex offender. He had been brought to the San Joaquin County jail 11 times in 2012 and 2013 for disarming his GPS tracker, drug use and other parole violations.
He was freed nearly every time within 24 hours, even when he was brought to the jail by the state's Fugitive Apprehension Team. Days after being let out early in February 2013, DeAvila went to his grandmother's house, raped and killed the 76-year-old woman, then chopped her body into pieces. He was found later that day with the woman's jewelry around his neck....
The problem stems from the huge increase in the number of state prisoners over the last four decades, spurred by increasingly harsh sentencing laws passed during the war on drugs. Felons could serve decades behind bars for repeat convictions of drug use and other nonviolent crimes. From a relatively stable population of less than 25,000 in the 1970s, the number of state prisoners rose to a high of 174,000 in 2007.
Crowding reached dangerous levels, leading federal judges to rule in 2009 that the conditions were unconstitutional. When Gov. Jerry Brown took office in 2011, the state was under orders to cap prison counts at 110,000.
Brown's solution, called "realignment," shifted the responsibility for parole violators and lower-level felons to the counties, putting inmates closer to home and potentially improving their prospects for rehabilitation. Lawmakers tried to ease the load on counties by expanding credits for good behavior and jailhouse work, cutting most sentences in half. Even with that, state officials concede, they knew jails did not have enough room.
The shift flooded county jails, many of which already were freeing convicted offenders under a melange of local court rulings, federal orders and self-imposed caps. "If you've got a prison population and a jail population, if you're going to release anywhere, you might better release at the lower level," said Diane Cummins, Brown's special advisor on realignment and criminal justice policy.
The number of prisoners released from county jail because of crowding has grown from an average of 9,700 a month in 2011 to over 13,500 a month today, according to state jail commission figures. In October, those records show releases surged to over 17,400.
Jailers are struggling to decide whom to let go.... Kern County Sheriff's Lt. Greg Gonzales said the jail he manages hits its maximum capacity two or three times a week. When that happens, inmates must go, 20 to 30 at a time. Parolees and those who have served the most time on their sentences leave first. Those who have committed violent crimes or molested a child stay the full term. The county is experimenting with a risk-assessment system that tries to gauge the likelihood an offender will commit future crimes. Gonzales does not pretend the decisions are foolproof. "Every release is a bad release," he said. What happens after "is a crap shoot."...
Law enforcement authorities and other officials say that releasing prisoners has raised safety issues, although there have been no studies on the effect. At a shelter for battered women in Stanislaus County, where the jail releases more than 500 inmates early each month, caseworkers are convinced that decreasing sentences has emboldened abusers....
Time served varies considerably around the state — a situation that UC Berkeley law professor Barry Krisberg called "justice by geography." That is especially true for parole violators, who used to serve their time in state prison. Now they are locked up in jails and are frequently the first to be released, or not booked at all....
Krisberg said stopping the early releases would require a fundamental change in California's criminal justice system. Just "shifting the location of incarceration" from prisons to jails doesn't change much, he said.
The Little Hoover Commission, an independent state policy agency that released a report last year that was critical of early releases, has recommended that California reform its complex sentencing laws, which have overwhelmed prisons with long-term inmates.
The commission has also recommended reducing bail so more inmates can afford to leave. State records show nearly two-thirds of the space in county jails is occupied by suspects awaiting trial. But even political supporters of such reforms say the issue is an electoral land mine likely to stir campaign accusations of being soft on crime.
Sheriffs have launched their own silent reform by letting out prisoners when there is no room. "We actually have a de facto sentencing commission in our sheriffs," said Carole D'Elia, acting executive director of the Little Hoover Commission. "You have a crazy system of 'Is the jail full today?' "
San Joaquin County Superior Court Judge Richard A. Vlavianos said that allowing jailers to override judges "does nothing but undercut integrity.… It loses public confidence. You lose integrity with the defendants. All the way around, it is a bad thing," he said.
As I have commented before and will say here again, this mess is the obvious by-product of California policy-makers failing to deal proactive with sentencing and corrections problems for decades. Nearly a decade ago, as noted in this long-ago post, Governor Arnold Schwarzenegger proclaimed a state of emergency because extreme prison overcrowding "created a health risk and 'extreme peril' for officers and inmates." He also called the the California legislature into special session in Summer 2006 to address critical prison crowding and recidivism issues. But, thanks to California's dysfunctional politics, nothing much got done. Similarly, smart folks have been urging California to create a sentencing commission to help deal with these issues, but California's dysfunctional politics again brought down a number of potentially sensible proactive reforms.
Now the price of all the avoidance is finally coming due, and the result seems pretty ugly on all fronts. But, sadly, I fear that precious few of the folks who should pay a political price for all this political dysfunction will in the end pay any real political price. Sigh.
August 18, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack (0)
Intriguing account of how Pittsburgh police undermined local crime-fighting efforts
This new article from the Pittsburgh Post-Gazette provide a disconcerting account of how local police can undermine efforts to reduce local crime. The piece is headlined "Professor: Lack of cooperation marred success of Pittsburgh crime-fighting initiative," and here are excerpts:
It was one of the most embarrassing moments of David Kennedy's career. Mr. Kennedy, a professor at the John Jay College of Criminal Justice at the City University of New York who has spent two decades studying crime and policing and worked with hundreds of departments across the country, was brought to Pittsburgh in 2008 by then-Mayor Luke Ravenstahl to help launch an initiative that has been credited with stemming killings in Cincinnati, Boston, Chicago, New Orleans, Philadelphia and elsewhere.
"It is the most effective intervention with respect to gun violence or homicide that we have in any portfolio," said Mr. Kennedy, also an author and co-chairman of the National Network for Safe Communities, an initiative of John Jay's Center for Crime Prevention and Control. "This works better than everything."
Part of implementing the Pittsburgh Initiative to Reduce Crime — a combination of outreach to gangs and other violent groups, a swift police crackdown on group members when shootings happen and the provision of social and job-related services to offer members a way out — required mining the knowledge of veteran street officers to identify the people most likely to become victims or perpetrators of shootings.
A team from the University of Cincinnati was brought in to spend a few days with those police officers to map out the city's violence-prone populations, but the team was sent packing in short order after the police refused to share information, Mr. Kennedy said. "I set this thing up and wound up with my face planted in the mud," he said, calling it an unprecedented level of resistance that command-level officers orchestrated.
A 2011 city-commissioned report on PIRC that the University of Pittsburgh conducted also found the police largely ignored the Cincinnati academics' research, which identified 35 "violent groups" in Pittsburgh and determined 69 percent of the city's homicides from 2007 to early 2010 were "group-related."
"The Pittsburgh police department was absolutely the most condescending and aggressively uncooperative agency I have encountered," he said. "They would not share information; they would not provide information. They would not allow any outsiders in." It made no difference that PIRC was a mayoral initiative with hundreds of thousands of dollars in City Council funding. "They actively rejected it and made no secret of that," Mr. Kennedy said. "My read on this was the police bureau saying, 'City Hall is trying to tell us what to do, and we're not going to do it.' And they won that fight."
Not long after, Mr. Kennedy gave up. "I said to them, 'This is a sham. I'm not going to be involved in it anymore,'" he said. Ever since, PIRC has failed to fulfill its potential to reduce the number of bodies hitting city streets, though it has had some success in connecting people with job services and education, said City Councilman Ricky Burgess, who helped bring the program to the city.
"We're losing lives because the police do not want to make preventing homicides by gaining community confidence its primary concern," he said, noting that the Allegheny County Department of Human Services embraced many of the same principles Mr. Kennedy promoted in a June report. "We need a philosophical change in the way the city of Pittsburgh police operates."
Two weeks ago, Mayor Bill Peduto, who was elected last year, and his new public safety director, former Pennsylvania state trooper and FBI special agent Stephen Bucar, were flanked by acting police Chief Regina McDonald at a news conference to address a spike in killings.... PIRC was barely mentioned during the news conference, during which most of the focus was on 13 new officers assigned to walk beats in Homewood and other East End neighborhoods, three more detectives moving to the bureau's homicide division and the role of the community in reporting crime and coming forward as witnesses....
Sonya Toler, the city's public safety spokeswoman, refused requests to interview Chief McDonald, former Public Safety Director Mike Huss, who remains on the city payroll, and Deputy Chief Paul Donaldson about PIRC. Jay Gilmer, PIRC's civilian coordinator and sole employee, who is paid about $49,000 a year, referred all questions to Ms. Toler, who said some of the past friction was the result of restrictions on sharing information outside of law enforcement circles. She said while it "may be true" that police resistance stifled PIRC's effectiveness, dwelling on the past won't make the program better in the future....
The mayor and Mr. Bucar have said they favor revamping PIRC, with Mr. Bucar pledging during his council confirmation hearing that the police "will become engaged" in the program. Mr. Bucar has assigned Officer Michelle Auge to be his liaison to the police bureau, which will include PIRC work, in a move that is already yielding results, Ms. Toler said....
Whatever happens, the existing Pittsburgh program needs more than a tweak, Mr. Kennedy said. "They need to blow it up and start all over again," he said. "PIRC did not fail because it won't work in Pittsburgh. PIRC failed because the police bureau failed to let it succeed."
August 18, 2014 in National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
Sunday, August 17, 2014
"Adverse childhood events: Incarceration of household members and health-related quality of life in adulthood"
Via The Crime Report, I came across this new report in the August 2014 issue of the Journal of Health Care for the Poor and Underserved. The piece has the title that is the title of this post, and here is the abstract:
Background. Incarceration of a household member has been associated with adverse outcomes for child well-being.
Methods. We assessed the association between childhood exposure to the incarceration of a household member and adult health-related quality of life (HRQOL) in the 2009/2010 Behavioral Risk Factor Surveillance System controlling for age, race/ethnicity, education, and additional adverse childhood experiences.
Results. Adults who lived in childhood with an incarcerated household member had higher risk of poor HRQOL compared with adults who had not (adjusted relative risk [ARR] 1.18; 95% CI 1.07, 1.31). Among Black adults the association was strongest with the physical health component of HRQOL (ARR 1.58 [95% CI 1.18, 2.12]); among White adults, the association was strongest with the mental health component of HRQOL (ARR 1.29, [95% CI 1.07–1.54]).
Conclusions. Living with an incarcerated household member during childhood is associated with higher risk of poor HRQOL during adulthood, suggesting that the collateral damages of incarceration for children are long-term.
Also appearing in the same journal issue are these two additional studies exploring the impact of prisoner release and health-care:
Health Outcomes and Retention in Care Following Release from Prison for Patients of an Urban Post-incarceration Transitions Clinic
"The Stress Will Kill You": Prisoner Reentry as Experienced by Family Members and the Urgent Need for Support Services
August 17, 2014 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1) | TrackBack (0)
Noting a legal mess with sex offender registries that is not ok in OK
This local article, headlined "Confusion Continues Over Sex Offender Registry In Oklahoma," spotlights some of the legal challenges that can arise when a jurisdiction keeps tinkering with its sex offender registration laws. Here are excerpts:
After years of revisions laws concerning Oklahoma sex offenders, there is still confusion over the offender registry. Seven years ago, Oklahoma amended the state's Sex Offender Registration Act that requires the Department of Corrections to assess offenders by assigning them to one of three risk levels.
A sex offender's level determines how long they have to register. "Except, this is the confusing part, unless your case was before 2007, and if it was before 2007, those rules don't apply to you unless aggravated applies to you," said defense attorney David Slane. "The legislature has changed the rules repeatedly, then the Department of Corrections is trying to interpret it to thousands of people, and in the meantime, the average policeman is trying to figure out what am I supposed to do, am I supposed to arrest this individual or not."
Slane said the rules are not as black and white as they used to be and calls it legal chaos. Last month, a convicted sex offender was arrested in Edmond for public intoxication. He had been living by a school and told police the 2007 law prevented him from having to re-register as a sex offender. We tried looking the offender up on the Oklahoma Sex Offender Registry, but he wasn't even listed.
The confusing laws are troubling for parents. "Of course it concerns me, you know, especially, when you have little kids around, I would like to know who is living next door to me," said Ivan Alvarez or Tulsa. Stephanie Rodriguez of Amarillo, said she's used the App "MobilePatrol" to see a list of sex offenders nearest her....
There are currently more than 7,000 offenders on the Oklahoma Sex Offender Registry. The Department of Corrections say it is currently reviewing about 1,000 sex offender cases.
August 17, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack (0)
Saturday, August 16, 2014
Recent highlights from Marijuana Law, Policy and Reform
It has been a few weeks since I did a round-up of recent posts at Marijuana Law, Policy and Reform, so here goes:
Former Florida Gov Jeb Bush conflicted about states' rights and federal pot prohibition
Highlighting how marijuana reform provides extraordinary small business opportunities
Pat Robertson, flip flopping, is now against marijuana legalization
"As Colorado Loosened Its Marijuana Laws, Underage Consumption And Traffic Fatalities Fell"
Notable summer marijuana sales numbers in Colorado and Washington
August 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack (0)
Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms
I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges. But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges. This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment):
Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.
Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was "ready to go forward." Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. "The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor's lawful and constitutional action, and believe we will ultimately prevail," she said.
The charges set off a political earthquake in the capital city. Democrats said the indictment underscores Perry's insider dealing and he should step down. Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.
The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.
Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.
In announcing the indictment, McCrum said he recognized the importance of the issues at stake. "I took into account the fact that we're talking about the governor of a state and the governor of the state of Texas, which we all love," he said. "Obviously, that carries a level of importance. But when it gets down to it, the law is the law."...
The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. "The grand jury decided that Perry's bullying crossed the line into lawbreaking," he said Friday. "Any governor under felony indictment ought to consider stepping aside."
State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. "Most people scratch their heads and wonder why we're spending taxpayer dollars to try to put somebody in jail for saying that they didn't feel it was appropriate to fund a unit where the person in charge was acting in a despicable way," Munisteri said....
A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April. McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush's administration. He's now in private practice, specializing in white-collar crimes....
McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. "That did not go into my consideration whatsoever," he said. Asked why he never called Perry before the grand jury, McCrum said, "That's prosecutorial discretion that I had."
Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.
Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew. I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).
August 16, 2014 in Celebrity sentencings, Mandatory minimum sentencing statutes, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack (0)
Friday, August 15, 2014
"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"
The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler. Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon. Here is the abstract:
Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.
The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of an independent commission with a standing, diverse membership. While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position. This is the time to create a better machine of mercy.
August 15, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
Senator Rand Paul, who has made notable efforts to push notable reforms of the federal criminal justice system, has penned this provocative Time op-ed about the sad and ugly situation that has unfolded in Ferguson, Missouri in the aftermath of the police shooting of teenager Michael Brown. Here are excerpts:
If I had been told to get out of the street as a teenager, there would have been a distinct possibility that I might have smarted off. But, I wouldn't have expected to be shot. The outrage in Ferguson is understandable — though there is never an excuse for rioting or looting. There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response.
The images and scenes we continue to see in Ferguson resemble war more than traditional police action....
Most police officers are good cops and good people. It is an unquestionably difficult job, especially in the current circumstances.
There is a systemic problem with today's law enforcement.
Not surprisingly, big government has been at the heart of the problem. Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies — where police departments compete to acquire military gear that goes far beyond what most of Americans think of as law enforcement.
This is usually done in the name of fighting the war on drugs or terrorism. The Heritage Foundation's Evan Bernick wrote in 2013 that, "the Department of Homeland Security has handed out anti-terrorism grants to cities and towns across the country, enabling them to buy armored vehicles, guns, armor, aircraft, and other equipment."...
When you couple this militarization of law enforcement with an erosion of civil liberties and due process that allows the police to become judge and jury — national security letters, no-knock searches, broad general warrants, pre-conviction forfeiture — we begin to have a very serious problem on our hands.
Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.
This is part of the anguish we are seeing in the tragic events outside of St. Louis, Missouri. It is what the citizens of Ferguson feel when there is an unfortunate and heartbreaking shooting like the incident with Michael Brown.
Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention. Our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences for non-violent mistakes in their youth.
The militarization of our law enforcement is due to an unprecedented expansion of government power in this realm. It is one thing for federal officials to work in conjunction with local authorities to reduce or solve crime. It is quite another for them to subsidize it.
Americans must never sacrifice their liberty for an illusive and dangerous, or false, security. This has been a cause I have championed for years, and one that is at a near-crisis point in our country.
August 15, 2014 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
More effective Slate coverage of extremes of (and problems with) sex offender registries
As noted in this prior post, this week Slate has published a series of commentaries spotlighting areas in which sex offender registries have become extreme and problematic. All four pieces in the series are now available, and here are the full titles and links to these pieces:
Sex Offender Laws Have Gone Too Far — Our draconian policies about sex offenses reflect our ignorance of them.
The Ridiculous Laws That Put People on the Sex Offender List — Three maps show states that register people as sex offenders for consensual teenage sex, peeing in public, and prostitution.
Listed for Life — In some states, people face a lifetime of restrictions for nonviolent offenses committed decades ago.
Not Wanted: Sex Offenders — Several states ban people in the registry from a bizarre list of jobs.
August 15, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack (0)
Thursday, August 14, 2014
Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable
In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:
We conclude that the district court imposed a substantively unreasonable sentence in this case. Dautovic's offense conduct was egregious. A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes. At Bonds and Evans's trial, where they were found innocent, Dautovic committed perjury. Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified. A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court's findings atsentencing were consistent with the jury's verdict. The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.
The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months. The district court found that Dautovic overreacted during the arrest and beating of Bonds. It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count. It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family. The district court acted within its discretion when it decided to vary downward based on Dautovic's history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.
The district court's justification for the variance fails to support the degree of the variance in this case. To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic's sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic's.... Dautovic's offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury. Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.
When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months' imprisonment to a 20-month sentence is unreasonably lenient. The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.
August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)
US Sentencing Commission finalizes its policy priorities for coming year
As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:
The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the "safety valve" statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....
The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. "For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases," Saris said. "We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better."
The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system. The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including "crime of violence" and "drug trafficking offense."
The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.
The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):
(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to "study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act")....
(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.
August 14, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
Wednesday, August 13, 2014
"How Prisoners' Rights Lawyers are Preserving the Role of the Courts"
The title of this post is the title of this notable new article on SSRN authored by Margo Schlanger. Here is the abstract:
This article is part of the University of Miami "Leading from Below" Symposium. It canvasses prisoners' lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute's limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation's millions of prisoners.
Part I summarizes in several charts the PLRA's sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA's constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs' coping methods for the PLRA's provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA's default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners' rights cases thread the needle that the PLRA presents
August 13, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack (0)
Alabama federal judge has cases reassigned after his arrest for wife-beating
As reported in this local article, the "11th Circuit Court of Appeals has reassigned cases pending before U.S. District Judge Mark Fuller, following the judge's arrest in Georgia Sunday on charges of misdemeanor battery." Here is more on the fallout from the latest case of a federal judge behaving very badly:
"Effective immediately, all legal matters filed with the United States District Court for the Middle District of Alabama that are pending before Judge Fuller will be reassigned to other judges in accordance with standard procedures for the assignment of cases," the circuit said in a statement posted to its website. "No new legal matters will be assigned to Judge Fuller until further notice."...
Fuller was released from jail on Monday after posting a $5,000 bond. According to a police report on the incident, Fuller's wife claimed that Fuller "pulled her to the ground and kicked her" after confronting him in an Atlanta hotel room over an alleged affair with a law clerk. Fuller's wife's also said he dragged her around the room "and hit her several times in the mouth with his hands."
The judge, who the report said did not have visible injuries, said his wife threw a drink at him, and that he pulled her hair to defend himself. "When asked about the lacerations to her mouth, Mr. Fuller stated that he just threw her to the ground and that was it," the report stated.
In a transcript of a 911 phone call obtained by the Associated Press, Fuller's wife is heard asking for help. "He's beating on me. Please help me," the woman tells the dispatcher before saying that she needed an ambulance....
Fuller presided over the trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy in 2006.
The judge, 55, divorced his first wife in 2012. The divorce records were sealed after Fuller cited concerns over the safety of his family. Fuller's ex-wife, Lisa Boyd Fuller, objected, saying Fuller "was guilty of marital misconduct and is attempting to shield himself from the public scrutiny thereof." In a request for admissions, Fuller's attorney asked the judge to admit or deny several allegations, including accusations of extramarital affairs, domestic violence and substance abuse. The results of that request are not known.
Federal judges are typically appointed for life, though the federal judicial circuits may punish judges for complaints over or physical capacity or ""conduct prejudicial to the effective and expeditious administration of the business of the courts." The circuits cannot remove sitting judges, but may censure them, remove their caseloads or request they voluntarily step down. In serious cases, a committee investigating a federal judge's conduct may refer them to the U.S. House of Representatives for impeachment.
I have heard a rumor that Judge Fuller is planning to ask for his case to be referred to NFL Commissioner Roger Goodell. (I am just kidding, of course.)
August 13, 2014 in Who Sentences? | Permalink | Comments (5) | TrackBack (0)
Noting the push for reforming the fraud federal sentencing guidelines
This lengthy new AP article, headlined "Sentencing Changes Sought for Business Crimes," discusses the on-going push to reform the federal sentencing guidelines for fraud offenses. Here are excerpts:
The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of drug dealers. Now, defense lawyers and prisoner advocates are pushing for similar treatment for an arguably less-sympathetic category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.
Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing ranges for nonviolent drug dealers. The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though not advocating wholesale changes, has said it welcomes a review.
It's unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake. The discussion about revamping white-collar sentences comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system....
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say. Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments have been defined by the total financial loss caused by the crime. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability. Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually stole money or merely intended to. The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role....
No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground. But defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person.
Any ambitious proposal will encounter obstacles. It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities. The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population. Tea Party conservatives and liberal groups united behind the change.
In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change. "I don't think there's a political will for really cutting back or retooling the guidelines," said Columbia University law professor Daniel Richman.
August 13, 2014 in Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)


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