The Department of Justice is challenging Utah’s immigration law, as it has immigration statutes passed by other states, prompting the State of Arizona to call for the Supreme Court to resolve the conflicts between federal and state governments.
The DOJ’s challenge to Utah’s law comes despite “several months of constructive discussions with Utah state officials,” DOJ said in its announcement as a suit was filed Tuesday in the District of Utah. “Notwithstanding today’s lawsuit, department officials expect this important dialogue to continue.”
The Utah law “could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending,” the DOJ said.
“A patchwork of immigration laws is not the answer and will only create further problems in our immigration system,” said Attorney General Eric Holder. “The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy. We will continue to monitor and coordinate with our federal partners as we remain concerned about the potential impact of these state laws.”
The DOJ has also challenged immigration laws in Alabama, South Carolina and Arizona, asserting that the Constitution gives the federal government, not the states, the power to set immigration policy. Meanwhile, three Republican senators, Jeff Sessions of Alabama, Jim DeMint of South Carolina and David Vitter of Louisiana, have said they will introduce legislation to bar the DOJ from suing against state immigration laws, as Main Justice reported recently.
All this has prompted the State of Arizona to call for the Supreme Court to step in, as Josh Gerstein reports on Politico.
“The question—whether States that bear a disproportionate burden of the costs of illegal immigration are powerless to use their own resources to enforce federal immigration standards without the express blessing of the federal executive—goes to the heart of our Nation’s system of dual sovereignty and cooperative federalism,” Arizona argues in its brief. The Obama administration has filed a brief urging the justices not to take the case.
“We should know next month whether the justices will tackle the immigration issue this year,” Gerstein writes.
Response to Nov. 15 Speech by Assistant Attorney General Lanny Breuer
By Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums (FAMM)
Judges are not to blame.
In remarks November 15 to the American Lawyer/National Law Journal Summit, Assistant Attorney General Lanny Breuer singled out the federal judiciary as the source of “significant disparities” in sentencing. Read his remarks here. He implied that judges are responsible for inter-district disparity — differences among federal district courts in rates of adherence to the federal sentencing guidelines — and all but accused the judiciary of practicing racial bias in the sentencing of black men. These “serious challenges” to sentencing policy he claims are the result of the Supreme Court’s decision in Booker v. United States, which replaced mandatory guidelines with an advisory guideline system, freeing judges to exercise discretion at sentencing. This is not the first time the Department has suggested judges are responsible for disparity. Look here and here.
Here are a few things the Department should reveal to the public before pointing the finger at judges again.
1. Prosecutors share responsibility for different guideline adherence rates among districts.
Yes, prosecutors play a huge role in sentencing outcomes that vary from district to district. How? By selecting which cases to prosecute and which charges to bring. They also affect outcomes by recommending sentences that vary from the guidelines, or by not objecting to – and not appealing — below-guideline sentences. The government exerts a tremendous gravitational pull on sentences and sentencing practices. But, much of their impact cannot be assessed. Plea and charge bargaining occurs behind closed doors. Meanwhile, prosecutors’ nod and wink acquiescence in below-guideline sentences is buried in sentencing transcripts, but show up in statistics looking like judge-caused disparity. Bare statistics obscure the real role of the government.
Take for example, the recent case of Joseph F. Skowron, discussed here and here, a hedge fund manager convicted of conspiracy and obstruction of justice in a $32 million insider trading scheme prosecuted in the Southern District of New York. The guidelines called for a 12 year sentence. The government agreed with the defense on a sentence of five years — the statutory maximum — a 41 percent variance from the guidelines. The U.S. Attorney called the sentence as “a steep price that Chip Skowron will now pay.” Not readily apparent is that the government dropped a set of charges that would have exposed Skowron to thirty years in prison, in exchange for his plea of guilty. Because Skowron’s sentence was not the result of a government-requested downward departure, however, it could very well show up as a steep judicial variance in the statistics.
It turns out the government owns the lion’s share of below-guideline sentences. Since Booker, prosecutors have requested below-guideline sentences in over 107,000 cases to reward substantial assistance, to speed up immigration cases, and for other reasons. Judges are responsible for only 60,800 below-guideline sentences.
Moreover, prosecutors cause inter-district disparity in how, where and how often they seek below-guideline sentences. For example, in 2010, the government asked courts to impose below guideline sentences in over 60% of cases they prosecuted in the Southern District of California but in only 3.7% of cases in the District of South Dakota, a difference of 56.7%.
2. Different federal districts are just that: different.
No two federal districts are alike and prosecutors treat their different caseloads differently – often at the behest of the Attorney General.
For example, the Attorney General decides in which districts prosecutors can ask the judge to impose below-guideline sentences in certain immigration cases. A defendant who quickly pleads guilty to an immigration violation is rewarded with a lower sentence recommendation (“fast track”) from the government. Here is where disparity comes in: the Attorney General authorizes such fast track disposition in some, but not all, districts. Illegal immigration cases in other districts do not get the benefit of a government recommendation. So, the Department’s sentencing policy produces built-in sentencing disparity among similarly situated defendants. Their only difference? The district in which they are prosecuted and whether the AG has authorized a lower sentence.
Mr. Breuer points out correctly that in the Western and Southern Districts of Texas, judges sentenced within the range over 71% of the time in 2010. This is due to charging practices, the nature of crime, and the very low sentences called for in those cases. For example, in the Western District, the majority of cases the government brings are for low-level immigration offenses (comprising 60% of the caseload with a median recommended sentence of 8 months) and marijuana offenses (comprising 63.7% of all drug cases, guideline range is 18-24 months max and 12-18 months with guideline-recommended adjustments). In the Southern District of Texas, immigration violations make up 73% of the caseload with a median sentence of 12 months. The guideline ranges are not only already very low, but many defendants serve much of their sentence prior to being sentenced.
Meanwhile, in the very different Southern District of New York, where judges sentenced within the guidelines 32.6% of the time (and granted government requests for lower sentences or sentenced above the guideline in an additional 18.4% of cases), fraud cases comprise 20% of the docket, where the final sentences (after variances) average 40 months, while drug cases make up 35.9% of the caseload and weigh in at an average sentence of 65.7 months. High guideline sentences in these drug and fraud cases likely invite more below-guideline sentences than the preternaturally low sentences in Texas. Not to mention that there is no fast track there, and courts imposed below guideline sentences in nearly 64% of those cases in 2010 to alleviate the disparity. Notwithstanding those variances, the Southern District of New York has the highest average sentences of any in the country for immigration offenses: 23.5 months and average sentences for all offenses of over 54 months, exceeding the national average.
3. Flawed guidelines, not flawed judges, drive variance rates.
Not all guidelines are created equal or deserve slavish adherence. The Department of Justice has called some of the most problematic guidelines into question and asked the Sentencing Commission to review and perhaps amend those that result in significant variances. Look here. Despite that, Mr. Breuer singled out, as he has in the past, differences in the sentencing of high loss fraud offenders as evidence of unwarranted disparity.
The guidelines covering these offenses can recommend sentences of life in prison for first time, non-violent offenders. So unhelpful are the fraud guidelines that they have been criticized by judges and former prosecutors alike as, for example, a “stain upon common sense,” and “rules . . . completely untethered from both criminal law theory and simple common sense.” One judge (a former prosecutor) bemoaned “the utter travesty of justice that sometimes results from the guidelines’ fetish with absolute arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” Given the ludicrous sentencing outcomes recommended by the guidelines, it is no surprise that judges find the unduly long sentences called for in high loss cases no help at all.
The solution? The Department of Justice should, rather than imply judges are the problem, instead continue to encourage the Sentencing Commission to revise such troublesome guidelines so that they are more relevant and useful to judges. I am quite confident that variance rates will fall if this advice is followed.
4. Sentencing rules drive racial disparity.
In his speech, Mr. Breuer relies on a recent demographic study by the Sentencing Commission that found that black male offenders receive sentences longer than white male offenders and that gap has grown since Booker. The inference: judges exercising discretion under advisory guidelines lead to racial disparity in sentencing and it is getting worse. “We must work to end such baseless disparities,” he states.
What he neglected to mention are the Commission caveats and cautions about the reliability of its findings or any conclusions. “[T]he results presented in this report” the Commission writes, “should be interpreted with caution.”
Why? Because data that the Commission does not collect and cannot account for is missing from its study. This missing data includes legally relevant information that judges use when sentencing defendants. This missing data, according to the Commission, call its own findings into question. “Judges make decisions when sentencing offenders based on many legal and other legitimate considerations that are not or cannot be measured,” the Commission stated, and “[t]he omission of one or more important variables usually causes the value of the variables that are included in the model to be overstated.”
Other academic researchers at Pennsylvania State University have questioned the methods employed by the Sentencing Commission in its study and found that their choices affected the outcomes, including the race effect finding. Read the article here.
Critics neglect to mention that the greatest sentencing gap between black and white defendants was during the mandatory guideline era. The Commissions’ report revealed that using a more comprehensive analysis assessing sentencing between 1999 and 2009, the greatest difference in the length of sentences between black and white offenders occurred in 1999, when sentencing was mandatory.
Among the chief causes of racial disparity are sentencing rules, such as mandatory minimums, which judges can do nothing to ameliorate. Some of them are described in a just released report by the Sentencing Commission on mandatory minimum sentencing. Read the report here. The Commission’s analysis of 73,239 offenders sentenced before a federal court during 2010 found that Black offenders convicted of an offense bearing a mandatory minimum penalty were sentenced to a mandatory minimum in 65.1% of their cases, the highest rate of any racial group, followed by White (53.5%) and Hispanic (44.3%) defendants.
In fact, advisory guidelines have enabled judges to ameliorate the impact of the most unfair sentencing guideline rules, including the universally condemned crack cocaine sentencing guideline. In 2010, judges sentenced crack cocaine offenders (the vast majority of whom are Black) below the guidelines in 60% of cases, compared to only 37% of cases in 2004. Judges were able to do real justice in these cases, shaving an average of five years from the sentences of 1000 predominantly African American men.
I welcome the Department’s call for “candid discussions about sentencing and corrections reform.” I applaud some steps that the Department has taken, including seeking funding for reentry programs and the Attorney General’s recognition that “not every disparity [in sentencing] is an unwelcome one.” But I hope the Department will resist the temptation to accuse judges of exercising their discretion inappropriately since the guidelines were made advisory with cherry-picked facts and unsubstantiated charges.
Merck, Sharp & Dohme, the American pharmaceutical giant, has agreed to pay $950 million to resolve criminal and civil claims related to the promotion of Vioxx, Justice Department officials announced Wednesday.
Under the agreement, the company will plead guilty to one count of violating the Food, Drug and Cosmetic Act as a result of introducing the painkiller into the U.S. market. Merck will pay a $321.6 million fine. It also will pay $628.36 million to resolve additional civil allegations in connection with making false statements about the drug’s cardiovascular safety and the marketing of the drug.
The federal government will receive $426.3 million and $201.9 million will be given to 43 states for Medicaid.
Merck has been under investigation for several years in connection with Vioxx, which was taken off the market in 2004. The criminal charge is related to the misbranding of Vioxx for treatment of rheumatoid arthritis before it was approved for that purpose. The civil charges are related to allegations that Merck representatives made “inaccurate, unsupported or misleading” statements about Vioxx in order to increase its sales.
“When a pharmaceutical company ignores FDA rules aimed at keeping our medicines safe and effective, that company undermines the ability of health care providers to make the best medical decisions on behalf of their patients,” said Tony West, assistant attorney general for the DOJ Civil Division. “As this plea agreement and civil settlement make clear, we will not hesitate to pursue those who skirt the proper drug approval process and make misleading statements about the safety and efficacy of their products.”
This case was handled by the Justice Department’s Civil Division and the U.S. Attorney’s Office for the District of Massachusetts. The investigation was conducted by HHS-OIG, the FBI, the Office of Criminal Investigations for the FDA, the Veterans Administration’s Office of Criminal Investigations, the Office of the Inspector General for the Office of Personnel Management, the National Association of Medicaid Fraud Control Units, and the offices of various state attorneys general.
The FBI’s Boston bureau, already embarrassed by its ties with the legendary and recently captured mobster James “Whitey” Bulger, may be in line for still more embarrassment.
The Justice Department is investigating the Boston FBI’s relationship with reputed East Boston mobster Mark Rossetti, who worked as a paid informant for decades, Boston’s Channel WCVB reported on Tuesday.
Last week team of six investigators began to look at allegations from Massachusetts law enforcement officials that the FBI lied about its use of Rossetti, 54, as an informant, Rep. Stephen Lynch (D-Mass.) said, according to WCVB. The station said an FBI spokesman, Paul Bresson, confirmed the probe in a statement: “Regarding the Rossetti matter, an inspection team from FBI headquarters in Washington, D.C., is currently reviewing.’’
That, no doubt, is pleasing to Sen. Charles E. Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, who recently expressed concerns about the FBI’s possible links to Rossetti, as Main Justice reported.
Lynch, who has filed legislation that would give Congress control over the FBI informant program, said it appeared that Rossetti was “running a criminal enterprise” while earning hundreds of dollars a month in taxpayers’ money (plus a free cell phone) while acting as an informant, WCVB reported.
If nothing else, Rossetti seems to have been a hard worker. “He was a top echelon informant,’’ defense attorney Steve Boozang said as he argued during a court hearing that wiretaps used to snare Rossetti and his accused underlings should be thrown out, according to WCVB. “You don’t start off as a top echelon informant. You have to rat yourself up the ladder.”
Rat yourself up the ladder? All right, in fairness it should be noted that investigators don’t get inside information on crime without talking to some criminals. It’s too soon to guess where all this will lead, but Allan Lengel, who called attention to the Boston TV report on his Tickle the Wire Blog, dared a prediction: “This can’t be good publicity for the FBI.”
Gov. Chris Christie of New Jersey has nominated a former federal prosecutor from his days as U.S. Attorney in the Garden State, tapping Richard Constable III to head the Department of Community Affairs.
The current DCA Commissioner, Lori Grifa, is stepping down effective Jan. 2, when she will return to the Wolff & Samson law firm, the Asbury Park Press reported.
Constable, 39, is currently a deputy commissioner in the Department of Labor & Workforce Development and was one of Christie’s first appointment to be an Assistant U.S. Attorney. He lives in Orange.
The New Jersey governor, who was U.S. Attorney from 2002 to 2008, has appointed dozens of ex-prosecutors, either to work for him directly or to judgeships, as Main Justice reported months ago.
The Department of Justice says it is investigating banks for possible antitrust violations in their recent additions of monthly debit card fees.
“The Department of Justice is reviewing the statements and actions by banks and their trade associations regarding possible increases in consumer fees for using debit cards,” Assistant Attorney General Ronald Weich of DOJ’s Office of Legislative Affairs told several Democratic House members who recently expressed concerns over the fees (see Main Justice’s report).
“Please be assured that if it finds that individuals, banks, or other parties may have violated antitrust laws, the Department will take appropriate action,” Weich said in a letter to the lawmakers.
In October, Democratic Reps. Peter Welch of Vermont, John Conyers of Michigan, Keith Ellison of Minnesota, Mike Honda of California and Raul Grijalva of Arizona asked Attorney General Eric Holder to launch an inquiry into possible collusion by Bank of America, Chase and Wells Fargo.
It seems like a nightmare for some 28,000 investors who were allegedly bilked of some $7 billion by financier R. Allen Stanford: two receivers, one in the United States and the other in Antigua, are fighting over what to do with Stanford’s assets.
Dallas attorney Ralph Janvey, who was appointed as Stanford’s U.S. receiver, has just asked the Department of Justice to seize some $330 million frozen in Stanford’s foreign bank accounts, Bloomberg reports. Janvey has been battling a receiver appointed by the Antiguan government for control of the financier’s estate for nearly three years.
“The Antiguan receiver was awarded control by Swiss and British courts of the former billionaire’s bank accounts in those countries, while Janvey controls Stanford assets in the U.S.,” Bloomberg explains. “Lawyers for Janvey and the Antiguan receiver told the Dallas judge in charge of the U.S. Securities and Exchange Commission’s civil fraud case against Stanford that the two receivers can’t agree how to share control of the estate or repay depositors.”
“Millions of dollars have been spent litigating these jurisdictional issues – all at the expense of the victims,” attorney Peter Morgenstern, a member of the Stanford investors’ committee, said in a Nov. 18 letter to the DOJ, Bloomberg said. “The committee urges the DOJ to immediately begin the process to repatriate these funds to the U.S. for prompt distribution to all legitimate Stanford victims, regardless of citizenship or residency status.”
Meanwhile, Stanford has been busy while in prison awaiting trial. For a time, he was suing the DOJ, the FBI and the Securities and Exchange Commission, accusing the agencies of “abusive law enforcement,” as Main Justice reported last March.
How far back did Bernard L. Madoff’s enormous Ponzi scheme extend? To the days when Richard M. Nixon was in the White House, a former Madoff aide said on Monday as he pleaded guilty to conspiracy and fraud charges that carry a potential punishment of 85 years in prison.
The guilty plea of David L. Kugel before U.S. Judge Laura Taylor Swain of the Southern District of New York had been scheduled (see Main Justice’s report), so the only suspense was what he would say about the life span of Madoff’s fraud, which came to light not quite three years ago as Madoff’s financial house of cards collapsed, along with the portfolios and retirement dreams of those who had believed in the supposed investment wizard.
Kugel, 66, said he was “deeply sorry” for his role in the deception, according to the Associated Press. Kugel went on to say that the Madoff fraud stretched back at least to the early 1970s, when he and others, acting on Madoff’s requests, juggled paperwork to give “the appearance of profitable trades when, in fact, no trading had occurred.”
“I want the court to know I will do all I can to cooperate with the government,” said Kugel, who also agreed to forfeit $3.5 million to the government. His sentencing was tentatively scheduled for May 4, giving him plenty of time to demonstrate his cooperation in the hope of enough leniency to enable him to emerge from prison one day and return to his fashionable home in Manhasset, Long Island.
The FBI declined to pursue charges against terrorism suspect Jose Pimentel because of the apparent weakness of the case against him, according to press reports.
Sources said that the bureau was hesitant to take the case to court because of “concerns centered upon the reliability of the cooperating informant in the case” and “entrapment issues,” TPM reported.
Federal officials also believed Pimentel was “mentally unstable,” “not a serious threat,” and “didn’t have the predisposition or the ability to do anything on his own,” according to the AP.
TPM also reported that the FBI passed on the case “several times” and that the bureau believed the case was too focused on the New York Police Department Intelligence Division’s cooperating source.
While state law enforcement officials can charge a suspect with conspiracy when the only other party involved is a paid government informant, federal officials cannot.
The FBI and the U.S. Attorney’s office, however, are still working with New York officials on the case.
A 27-year-old Manhattan resident with a fondness for the late American-born Muslim militant cleric Anwar al-Awlaki, Piminetel was arrested Saturday on charges of conspiring to build and detonate bombs in New York, city officials announced on Sunday night.
