(DEBRA CASSENS WEISS) A federal indictment unsealed Wednesday accuses two pharmacists of second-degree murder in a 2012 fungal meningitis outbreak that killed at least 64 people and injured about 750 others.
U.S. Attorney Carmen Ortiz announced the 131-count indictment Wednesday against the pharmacists and 12 other people associated with the New England Compounding Center in Massachusetts, report Reuters, the Atlantic, USA Today and the Boston Globe. A press release is here.
Prosecutors say the outbreak was caused by contaminated steroids produced in unsafe conditions and shipped across the country by NECC. Compounding pharmacies like NECC are licensed to mix custom medications for hospitals and doctors.
The indictment alleges violations of the Racketeer Influenced and Corrupt Organizations Act and claims 25 predicate acts of second-degree murder by the two pharmacists, NECC co-founder Barry Cadden, 48, and supervising pharmacist Glenn Chinn, 46. Those charges claim the pharmacists acted with extreme indifference to human life and relate to 25 patients who died in seven states.
“Production and profit were prioritized over safety,” Ortiz said at a Boston press conference. Senior pharmacists were aware of “filthy conditions” in labs that were “thoroughly contaminated,” she alleged.
The RICO charges alleged that NECC acted with a related company to form a criminal enterprise that obtained money through materially false premises.
One of the many interesting questions in the world of post-Booker federal sentencing is whether a judge, in sentencing one defendant, is required (or permitted) to take into account the sentences imposed on codefendants. Yesterday, the Third Circuit issued an interesting opinion on this question. (Doug Berman has an excerpt and link to the opinion here.) In United States v. Parker, the defendant received a sentence of 349 months, while his codefendants in the drug trafficking case received only 86 and 180 months. Parker argued this his sentence was “unreasonable” (the post-Booker standard for appellate review of sentences) “because it failed to take into account ‘the need to avoid unwarranted sentence disparities mong defendants with similar records who have been found guilty of similar conduct’ as provided by [18 U.S.C.] 3553(a)(6).”
I have argued elsewhere that (a)(6) should not be read to encompass codefendant disparities, so I was not unhappy that the Third Circuit rejected Parker’s argument. Yet, while the court did not require codefendant sentences to be considered, the court did indicate that judges were permitted to take the factor into account. I am a big fan of increased sentencing discretion post-Booker, but I am troubled by the prospect of a sentencing judge saying something like this: “I see, Mr. Defendant, that your guidelines sentence is about 20 years, but your coconspirator, whom I sentenced a few months ago, got only 10 years. So, I’ll split the difference and give you 15.” (For an example of a real case in which the judge seemed to be doing just that (United States v. Strange), see my article linked above.) This approach seems to make the sentence depend on the vagaries of who gets prosecuted and sentenced first–precisely the sort of arbitrariness that the guidelines were intended to eliminate.
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(Dan Markel) Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT’s Freakonomics Blog, following our two earlier posts about our book Privilege or Punish. I’ve reprinted the post after the jump. Feel free to weigh in with comments here or there.
We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.
Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel
Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”
Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.
A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.
Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.
What About the Children?
Contacting a Detroit Criminal Lawyer – DetroitCriminalLawyer.org – is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony. A criminal record can wreak havoc in your life, whether you have been only arrested or convicted.
(Jonathan Simon) As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession– our conviction that we might have stopped the tragedy (read William Yardley’s summary of the blame game in the NYTimes). Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change). Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons. More should be learned over the next news cycle or two.
As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small “d” democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics). Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen). My objection, however, is limited to two points.
First, our obsession with the “recidivist”. Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after. This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances. Ironically, the one trait that really may help us track future violence–evidence of major mental illness combined with acts of violence–seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).
(Jonathan Simon) I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home. The panel had the intriguing title “Careers in Criminal Law: Beyond Defense & Prosecution.” I wanted to share a rough outline of what I would have said. The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution. For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late ’60s, the long war may be winding down(at least in growth terms). But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering. For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.
The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous “legacy” costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous. Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc.
I’m not saying these jobs are waiting in a binder in the career center. Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools. Here are a few general areas where there is lots of action:
Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods. Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood. Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key. The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.
Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around. The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example. By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money. We need more creative uses of litigation to create more effective lawyer roles in the parole process. The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.
(Jonathan Simon) With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday’s NYtimes (read Al Baker’sreporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken’s article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide “spike,” with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski’s reporting in the Providence Journal). This is good news in a year with little of it.
The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they’ve been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year’s speculation list of the top three “positive” factors underlying declines in urban domestic violence.
May they all continue in 2010!
1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course.
2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.
(Eric Rasmusen) I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the “Standard Story” that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I’d spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.
Gunderman starts with the standard it-isn’t-crime explanation:
Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.
His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that’s 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2
But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can’t just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.
Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don’t necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters.
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