Monday, September 9, 2013

Virginia Criminal Sentencing Commission September 9, 2013 Meeting: Discussed Increasing Child Pornography Sentence and Peugh v. U.S. Decision (Ex Post Facto in Sentencing)

Just a reminder to the readers, the Virginia Criminal Sentencing Commission is not a Legislative branch like the Virginia State Crime Commission . The VCSC is a judicial branch; they mainly conduct studies and gather data on sentencing guidelines in Virginia. 

Also, I previously posted about the VCSC and that the number one fiscal request they receive for proposed legislation during the yearly Virginia General Assembly session is “Sex Offender” bills. 

Today the Virginia Criminal Sentencing Commission met in Richmond, their third of four meetings for 2013 and I attended.

This was the first meeting ever that they posted a draft agenda, ahead of time. The Power Point Presentations were not yet posted on their website when I was typing this post but they should be up very soon.

The Commission is considering 5 possible topics/sentences to revise and propose in their December Report.

Remember if the VCSC recommends a change in sentencing a bill is NOT required at the yearly General Assembly to make the legislative change. It goes into their annual report and will automatically become law UNLESS a bill is submitted at the yearly session to STOP it from becoming law and that rarely happens.

When today's Presentations are finally loaded pay attention to recommendation #5- Reanalyzing Child Solicitation and Child Pornography Offenses. In the list of concerns they’ve noted that possession carries a much higher punishment than production, which I agree is ridiculous. The creators (producers) of child pornography are usually the ones abusing the children, they are “supplying” the market and in my opinion the producers and sellers should be more significantly punished than the viewers/down-loaders/sharers are. But when reading the presentation the statutory maximums are very significant so unless they’re looking to make if life I think they have it covered knowing the mandatory minimums in all these crimes trumps the sentencing guidelines. Unless the 2013 VCSC recommendation is greater than the mandatory minimum it really won’t be much of a difference.

As for mandatory minimums, I oppose them for ANY crime. Each case should be considered on it’s own merits, evidence and mitigating circumstances. Mandatory minimums tie the hands of the judge and jury and create an assembly-line environment where justice is not attainable.

Another noted concern from the presentation was professed “sex addicts” with one count each results in a probation recommendation instead of prison time. I’m not sure how I feel about this being increased, but it’s not something I would oppose.

What would be a positive change is if the VCSC reduced the punishment for the viewers and down-loaders of child porn who’ve had NO contact with the victim and who aren’t profiting from the abuse, but I don’t think the VCSC has EVER reduced a sentence since they formed; only increased them. As I noted in my previous VCSC post at the Federal level there has long been discussions about the Over-Criminalization of America not just because of Federal overreach into matters that should be handled by the states but also because of the heavy use of mandatory minimums stripping judges and juries from weighing the evidence in individual cases before deciding on a sentence but yet in the states the lawmakers don’t see a problem. A real disconnect.

At the end of today’s VCSC meeting they briefly discussed Peugh v. U.S.

Marvin Peugh was convicted of fraud for actions taken in 1999 and 2000. The 1998 Sentencing Guidelines recommended a 37- to 46-month sentence, while the 2009 Sentencing Guidelines recommended a 70- to 87-month sentence for Peugh’s conviction. After receiving a 70-month sentence under the 2009 Guidelines, Peugh asserts that using the 2009 Guidelines retroactively increased his punishment in violation of the Constitution’s Ex Post Facto Clause. The United States counters that the Sentencing Guidelines are merely advisory and that sentencing ultimately rests with a judge’s discretion, deferring to their knowledge of the case and their own penal philosophy. The Seventh Circuit Court of Appeals affirmed Peugh’s sentence; however, eight other courts of appeals would have directed the trial court to consult the 1998 Guidelines. This case is important to ensure consistent sentencing principles, even if particular sentences may vary. The notion that everyone should receive the same sentence for the same crime is a good theory, but other factors often cause a disparity in punishment.

Decision: June 10, 2013

Holding: The Constitution’s Ex Post Facto Clause prohibits federal courts from sentencing a defendant based on guidelines that were promulgated after he committed his crimes, when the new version of guidelines provides a higher sentencing range than the version in place at the time of the offense.

Judgment: Reversed and remanded, 5-4, in an opinion by Justice Sotomayor on June 10, 2013. Justice Ginsburg, Justice Breyer, and Justice Kagan joined the opinion in full and Justice Kennedy joined the opinion except as to Part III-C. Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts, Justice Scalia and Justice Alito as to Parts I and II-C. Justice Alito filed a dissenting opinion in which Justice Scalia joined.

The VCSC members all seemed to agree that this decision doesn’t affect the sentencing process in the Commonwealth one member stated “because Justice Kennedy didn’t agree with section C (III), only A (I) and B (II).  It doesn’t apply because the majority didn’t agree” (You can click on the decision above if you’re interested in looking into this point made by a Commission member).

Another comment made during the discussion was “if the defense attorneys want to argue this point to the judge they can” But then it was mentioned by someone else in the room that old versions of the sentencing guidelines are disposed of so how would the defense even be able to know what the guidelines were at the time of an old offense.

In the end, Peugh v. U.S. isn’t changing how sentencing is being done in Virginia. It will take a Virginia citizen to challenge the use of current guidelines for an old crime against them and win.

The next VCSC meeting is scheduled for Wednesday November 6, 2013.

Thank you for following my blog!

Mary Devoy