VICTIMS

Bernie Madoff has made his pitch.

Twelve years, Your Honor. Or if you won't go for that, fifteen to twenty. Oh, and don't listen to all that those victims said.

Madoff stole (there's no other word for it) some $50 billion dollars. That's staggering.

He took the life savings from who knows how many people. He destroyed retirement. He destroyed lives. Some of those people were wealthy. Others perhaps just comfortable. Regardless, they hurt.

He took money from foundations and major donors to charity, too. That means good causes (of every stripe and pretty much regardless of what you or I might think worthy) are hurting.

And he hurt the economy as a whole, at least to some extent, helping to deepen the economic turmoil of the last year. That means that, in some sense, we're all his victims.

How does one make an argument for something akin to leniency in the face of those facts and of the calls for Madoff's head. His lawyers wrote

We have read the unfortunate number of Victim Impact Statements and recognize that terrible losses have been suffered as a result of Mr. Madoff's conduct, and we have advised Mr. Madoff of their tenor and heart-wrenching stories of loss and deprivation. . . . Both he and his counsel acknwoledge the scope and magnitude of those losses and understand the victims' calls for reprisal. . . . Nevertheless, we believe that the unified tone of the victim statements suggest a desire for a type of mob vengence that, if countenanced here, would negate and render meaningless the role of the Court.

Victim's voices as the voice of the mob? Pay no attention to the voices behind the curtain? You gotta be kidding.

In fact, the law is all for judges listening to victims of crime and their representatives. The formal explanation is something like, "It's necessary to assess the specific harm caused in order to determine the appropriate sanction." There's a certain logic to that, but it only works when the specific harm can be quantified.

How much did he steal? How many people did he actually hurt? Put it into a grid and you have something like the basic idea behind the federal Sentencing Guidelines. The Guidelines also take into account things like the offender's criminal history and provide other aggravating and mitigating factors. They're a maze and something of a nightmare in practice, but as an idea - and especially when they are treated as the merely advisory aids to sentencing that they are now - they make sense.

But the judge doesn't need to hear from individual victims, say, those who want to vent or who are just especially articulate. And I don't think the judge should be permitted to. Sentencing should be about justice tempered with mercy. But neither of those things has much to do with the emotional responses, the feelings, of crime victims. And, certainly, neither has to do with prosecutors who see their jobs as being agents of the victims of crimes.

Criminal law is not about private wrongs. It's about public ones. The offender's behavior has harmed the body politic and the criminal case is the body politic's response.

The individual victims are something else. Tort law is designed to provide them with a means of seeking satisfaction. It's the mechanism for private wrongs.

I took off here from Bernie Madoff, but the same is true, maybe more typically, of street crime.

Prosecutors too often agree to reasonable plea offers only when victims approve, as if the prosecutors are the representatives of the victims, their lawyers. They listen and obey, too often, the demands of the media. They respond as if it is their job to make whole those who suffer - and as if they can. The truth is that they can't and they shouldn't.

It sounds harsh to say that victims should have no say in the world of criminal justice. But it's true.

CASE NOTES

Cases from hither and yon.

A new post by Sumter Camp on the Sixth Circuit Blog pointed me to US v. Blue, a sentencing appeal where Blue argued that the District Court should have given her a downward departure in Guideline calculation under 5K1.1 for substantial cooperation.

The problem, of course, is that even post-Booker, 5K1.1 departures must be requested by the government. On the other hand, the defendant can ask for a downward variance under 3553(a).

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

As Camp notes, the lesson for all of us is that requested departures and variances should be made under both the Guidelines and 3553(a). They're related but separate means of getting reductions, but what the Guidelines may not allow (such as a defense request for a substantial assistance reduction) 3553(a) will.

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Ken Lammers at CrimLaw has this post on Whitehead v. Commonwealth from the Virginia Supreme Court earlier this month.

Whitehead was convicted of receiving stolen property. But the evidence didn't actually support that offense under Virginia law. Now, in the state's high court, and for the first time, the state argued that the conviction should be affirmed because Whitehead constructively possessed the property. You'd think that might fly, that Virginia, like Ohio, would say that a court that got the right result will be affirmed even if the court had the wrong reason. And according to Lammers that had been the law in Virginia though the Whitehead court pretty much denies that. In any event, it's the law no longer.

However, whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine. Id. This principle applies in criminal as well as civil cases. Brown v. Commonwealth, 270 Va. 414, 421 n.2, 620 S.E.2d 760, 764 n.2 (2005). Here, the Commonwealth did not argue constructive possession in the trial court or before the Court of Appeals. Consequently, we will not consider the Commonwealth’s constructive possession argument here.

Since we're appellants far more often than appellees, the change in law can only be good for us.

Oh, wait, that's only in Virginia.

Those of us in Ohio just dream on.

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In Paris, Texas, 18 year old Aaron Hart was caught fondling a 6 year old boy. He entered guilty pleas to five offenses and, after a sentencing trial (it's Texas; it's how they do things) at which the jury asked the judge several times about alternatives to prison but apparently got no help, he was sentenced to 100 years in prison. 100 years.

Did I mention that his attorney never did much?

The Dallas Morning News, in this report on the case, says that David Pearson, Hart's appellate counsel,

blames Hart's trial attorney, who had the burden of explaining Hart's disability to the judge and jury. That attorney, appointed by the court because Hart's family couldn't afford counsel, did not ask for special accommodations, such as a liaison who could help the defendant understand what was happening in court. Nor did he try to call witnesses who could testify to Hart's mental condition, Pearson said.

And he didn't get a second opinion after a court-appointed doctor found Hart competent to stand trial. That meant Hart no longer qualified for prison diversion options, like group homes and institutional settings for disabled offenders.

At least they didn't sentence him to die. It is Texas, after all.

SOTOMAYOR APPLIES THE GUIDELINES

With a nod of thanks to Prof. Doug Berman at the Sentencing Law and Policy blog it's worth a read of still-Judge-not-yet-Justice Sotomayor's opinion concurring in part and dissenting in larger part from an en banc decision of the 2nd Circuit that affirmed an upward departure in a federal firearms trafficking case. US v. Cavera.

Berman writes, "I consider her Cavera opinion a fascinating and remarkable piece of judging. The opinion should be read closely not only by sentencing fans, but by everyone seeking a truly informed perspective on the type of jurist that Judge Sotomayor now is."

But what type is she?

The decision is pro-defendant in the narrow sense that any decision which would reverse an upward departure is pro-defendant. And I suppose it's good to know she would do that in some case (hard to imagine that, say, Alito or Roberts would). But what the opinion is really about, it seems to me, is the need/authority of the appellate courts to conduct serious review of the sentencing decisions of the trial courts to make sure that the trial judge was sufficiently rigorous in any departure from the Guidelines.

It's far from clear that her approach will be particularly friendly to the defense. Frankly, I think it likely to result generally in support for upward departures and opposition to downward ones - which would make her actual vote in Cavera an anomaly.