The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.
There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.
In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.
Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?
The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.
One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.
Showing posts with label sentencing. Show all posts
Showing posts with label sentencing. Show all posts
Thursday, June 7, 2018
Tuesday, June 5, 2018
Who wants an independent judiciary anyway?
Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.
The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.
She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.
Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.
Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.
But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.
The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.
Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.
Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.
The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.
Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.
Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.
The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.
She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.
Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.
In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.
Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.
Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.
But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.
The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.
Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.
The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.
“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”
We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.
Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.
The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.
Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.
Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.
Wednesday, December 13, 2017
What happens when a law prof ventures outside the ivory tower
Over a year ago I wrote about the hornets nest that opened around Judge Aaron Persky in Santa Clara, California. You may recall that he presided over the trial of a Stanford swimmer accused of sexually assaulting an unconscious woman behind a dumpster.
The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.
Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.
As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.
Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?
The answer is he never did.
Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.
As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.
It's that simple.
The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.
It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.
When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.
The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.
Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.
Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.
The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.
Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.
As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.
Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?
The answer is he never did.
Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.
As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.
It's that simple.
The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.
It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.
When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.
The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.
Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.
Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.
Thursday, September 1, 2016
An attack on discretion
In theory, a judge should make his or her decisions on the bench without regard to politics. In theory, a judge should be shielded from politics in order to make the best decision in a given case - not the popular decision.
Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.
We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.
Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.
Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.
Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.
Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.
Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.
There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.
Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.
Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.
A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.
An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.
State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.
Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.
As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.
What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.
Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.
Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.
We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.
Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.
Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.
Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.
Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.
Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.
There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.
Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.
Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.
A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.
An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.
State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.
Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.
As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.
What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.
Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.
Wednesday, July 9, 2014
The assembly line keeps on moving
I caught an interesting piece on All Things Considered this afternoon about sentencing reform. Over the last couple of decades tough-on-crime politicians pushed for harsher sentences for non-violent offenders. As a result of the misguided war on drugs, jails around the country have been packed to the gills.
As a result of overcrowding, conservative politicians have been trying to find ways to reduce jail politicians. Restrictions on parole have been eased. Mandatory minimum sentences have been eliminated. Counties are giving more credit for every day an inmate sits in jail.
The problem is the result of simple-minded "solutions" to problems that didn't exist. People sitting in jail and prison for possession of drugs doesn't solve any problem - it only creates more. Addicts and users need treatment, not jail or prison. Incarceration should be a last resort for offenders, not a first option.
Instead we use our jail and prison systems to segregate the population. While we know that whites, blacks and Hispanics all use drugs in pretty much the same proportion, it's the non-white folks that end up with long sentences behind bars. While well-to-do whites are snorting cocaine in clubs and at parties, black and Hispanic youth are being busted for possession of crack.
Law enforcement officials and prosecutors have fought efforts to reduce penalties for possession tooth and nail. They continue to fight common sense measures to reduce jail and prison populations because they are afraid of giving up the leverage they have over those charged with possession. It's far easier to obtain a guilty plea when a defendant has a choice of a few months in the county jail or a longer stretch in prison.
And who cares about the aftermath of a long prison sentence. Neither the judge, nor the prosecutor nor the arresting officer are going to have to deal with the problems a family faces when the breadwinner is taken away in chains. But you can bet that someone will have to deal with the consequences down the road.
We all know that it's far easier to treat the symptoms of a problem that to address the actual problem itself. Why bother trying to get to the heart of why so many young people use drugs when you can just bring them before a judge on the chain and coerce plea after plea?
The cost of providing treatment for those addicted to drugs would be far less than the amount we currently pay to house them in jails and prisons. Wouldn't our money be better spent on trying to help people get off drugs rather than warehousing them in correctional facilities? Wouldn't it be better for them to be working in productive jobs rather than sitting behind bars? If our wingnut politicians are so concerned about "family values," wouldn't it be better to keep families together rather than tearing them apart?
But then, as I've said many times before, those folks accused of crimes, and those serving time behind bars, don't have a powerful political lobby. Politicians aren't looking for their votes. And that's the calculus that drives policy -- what can I do today that will increase the number of votes I can get and reduce the number of votes my opponent can get?
In the meantime the wheels will keep on turning and nothing will change.
As a result of overcrowding, conservative politicians have been trying to find ways to reduce jail politicians. Restrictions on parole have been eased. Mandatory minimum sentences have been eliminated. Counties are giving more credit for every day an inmate sits in jail.
The problem is the result of simple-minded "solutions" to problems that didn't exist. People sitting in jail and prison for possession of drugs doesn't solve any problem - it only creates more. Addicts and users need treatment, not jail or prison. Incarceration should be a last resort for offenders, not a first option.
Instead we use our jail and prison systems to segregate the population. While we know that whites, blacks and Hispanics all use drugs in pretty much the same proportion, it's the non-white folks that end up with long sentences behind bars. While well-to-do whites are snorting cocaine in clubs and at parties, black and Hispanic youth are being busted for possession of crack.
Law enforcement officials and prosecutors have fought efforts to reduce penalties for possession tooth and nail. They continue to fight common sense measures to reduce jail and prison populations because they are afraid of giving up the leverage they have over those charged with possession. It's far easier to obtain a guilty plea when a defendant has a choice of a few months in the county jail or a longer stretch in prison.
And who cares about the aftermath of a long prison sentence. Neither the judge, nor the prosecutor nor the arresting officer are going to have to deal with the problems a family faces when the breadwinner is taken away in chains. But you can bet that someone will have to deal with the consequences down the road.
We all know that it's far easier to treat the symptoms of a problem that to address the actual problem itself. Why bother trying to get to the heart of why so many young people use drugs when you can just bring them before a judge on the chain and coerce plea after plea?
The cost of providing treatment for those addicted to drugs would be far less than the amount we currently pay to house them in jails and prisons. Wouldn't our money be better spent on trying to help people get off drugs rather than warehousing them in correctional facilities? Wouldn't it be better for them to be working in productive jobs rather than sitting behind bars? If our wingnut politicians are so concerned about "family values," wouldn't it be better to keep families together rather than tearing them apart?
But then, as I've said many times before, those folks accused of crimes, and those serving time behind bars, don't have a powerful political lobby. Politicians aren't looking for their votes. And that's the calculus that drives policy -- what can I do today that will increase the number of votes I can get and reduce the number of votes my opponent can get?
In the meantime the wheels will keep on turning and nothing will change.
Friday, January 10, 2014
Reforming sentencing laws
It's fairly axiomatic that legislatures generally play catch-up to society. Once there appears to be something of a groundswell around an issue, those men and women in the state and national capitals stick their fingers in the air, figure out where the money's coming from and raise the flag of the issue of the day.
Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.
The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.
Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.
So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.
The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.
The federally-protected right to a trial became an illusion.
Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.
Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.
Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.
The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.
Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.
So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.
The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.
The federally-protected right to a trial became an illusion.
[L]egal scholars like Erik Luna, a Washington and Lee University law professor who has written and testified extensively about mandatory minimum sentencing, also assert that the sentencing rules shift power from judges to prosecutors — an infringement on separation of powers doctrine.
It's an argument George Will recently invoked: "The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the Constitutional right to a trial."But now the bills have come due. Jails and prisons are overcrowded with addicts and other non-violent offenders serving ridiculously long sentences because of a failed drug war. Simple misdemeanor thefts are enhanced to long-term felonies because of prior convictions. No one but the private prison industry (and those receiving kickbacks on construction projects) have benefited from this arrangement. And here comes Congress riding to the rescue.
But while advocates such as Stewart, libertarian thinkers at the CATO Institute and a growing number of conservatives like columnist George Will are pushing for change, some drug prosecutors have urged caution.
"The real power and efficacy of federal minimum mandatory sentences is our ability to hold them over certain peoples' heads in solving kingpin drug cases, or major murders," says Scott Burns, head of the National District Attorneys Association.
Burns was among the witnesses who testified about mandatory minimums last fall before the Senate Judiciary Committee. The sentencing rules have been "an important tool" in driving down serious crime, Burns says, which over the past three decades has plummeted.
He sees Congress' motivation as purely financial.
"They're doing this because they are simply refusing to fund more federal prisons, period," says Burns, a former deputy director of National Drug Control Policy during the George W. Bush administration.Of course the prosecutors are opposed to any changes in the way in which the federal courts operate. In their narrow world view, the only answer to a problem is to lock someone up for a long time and then toss him back on the street years later with little or no way to ever be a productive member of society. But what else would you expect - sentences are just numbers to a prosecutor. They have no meaning. No consequences.
Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.
Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.
Friday, December 28, 2012
Thinking twice before uttering that big number
So just how much sense does it make to lock someone up in prison until they are in their 80's or 90's? Sure, maybe the sentencing guidelines tell you it's got to be done. Or maybe it's that election coming up in a few months.
But does anyone stop to think about the social costs of keeping elderly prisoners behind bars?
US District Judge Richard Posner has thought about. And the notion troubled him enough that it was the subject of a concurring opinion in U.S. v. Craig, No. 12-1262 (7th Cir. 2012).
Mr. Craig plead guilty to four counts of producing child pornography. He photographed his sexual assaults of a preteen girl and then threatened to kill her if she didn't provide him more pictures of herself. Based on the sentencing guidelines (and I thought those were but advisory these days), he could have been sentenced to life on each count. But, because he had no prior convictions, the most he could be sentenced to was 30 years per count. The trial court decided to sentence him to 30 years on one count and concurrent sentences of 20 years each on the other three counts. He then stacked the sentences and Mr. Craig headed off to prison for 50 years.
At the time of his sentencing Mr. Craig was 46 years old. Judge Posner pointed out that if he served out his sentence, Mr. Craig would be a guest of the state until he was 96 years old. As you may or may not be aware of, elderly folks tend to have more serious medical conditions than younger people. These conditions require more treatment, more medication and more expense in general. And if Mr. Craig remains in prison, someone has to foot the bill for his medical care.
Judge Posner suggested that it would be more economical for Mr. Craig to be released at some point so that he could seek employment and make contributions to the Medicare system. Should that happen, he would be paying for at least a portion of the care he receives - like anyone else covered by Medicare. But, if we're going to continue to lock people up beyond the point that they are a threat to anyone, then we are all going to pay the cost of those draconian sentences.
The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one. An impressive body of economic research (summarized and extended in David S. Abrams, “The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration,” forthcoming in Iowa Law Review) finds for example that forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates. Ours is not a “little crime” case, and not even the defendant suggests that probation would be an appropriate punishment. But it is a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence.
Yes, there are some people out there that should be locked up until they breathe their final breath, but those folks are few and far between. We are living longer now than ever before and there is no reason not to expect that trend to continue into the future. So long as the cost of health care continues to increase for elderly people, we are going to find new funding mechanisms for Medicare (as well as revamping Social Security when we reach the point that there aren't enough workers paying FICA taxes to support those receiving Social Security benefits).
With our longer lifespans we see more incidences of cancer as well as heart disease. These are costly conditions to treat and if we insist on locking people up until they are carted out in a pine box then we are the ones who are going to have to pay for it.
I doubt most judges give the matter a second thought for they will be long off the bench before the bill comes and, besides, no one will remember who put that inmate behind bars until his dying days. At least Judge Posner has given us something to think about.
Not to mention that they're aren't too many 70, 80 and 90 year olds out there committing crimes anyway.
Tuesday, December 18, 2012
The rich really are different from the rest of us
So, Richard Frase, under what theory of punishment would you classify the Federal Government's decision not to indict HSBC in exchange for a payment of $1.9 billion?
Bribery?
Here we are sentencing petty thieves to life sentences because of "three strikes and you're out" laws across this country. We sentence folks caught with crack cocaine to more severe sentences than those caught with powder cocaine. We sentence financial swindlers to terms of years in federal prisons.
But we let HSBC off the hook in exchange for a chunk of change. We're willing to forget about the money laundering services provided to the Mexican drug cartels. We don't care that you provided services for Iran and other countries when the federal government said it was a no-no.
The local prosecutor won't considering reducing a felony to a misdemeanor for a young man with no criminal history who happened to be in the wrong place at the wrong time. He stole nothing and he harmed no one. But, no. We can't reduce that charge.
And we can't go a different direction on that DWI, either. He can take the deal or he can go to trial.
Of course neither one of them had $1.9 billion handy. Neither one of them was too big to fail.
F. Scott Fitzgerald was right when he said the rich were different than us. They are. They are treated differently. We mustn't ruin a life. We mustn't bring down a big bank.
But the rest of y'all can go to hell. No special deals. No breaks. You do the crime, you do the time. Anything else would be patently unfair.
Everyone knows the system is rigged. The federal government's decision not to prosecute a bank in exchange for filthy lucre is but the latest example. It won't be the last. Meanwhile go tell that young man in the holdover that the state just can't go below four years on its offer. After all, he's not too big to fail.
See also:
"Dickering over the price," Simple Justice (12/13/2012)
Bribery?
Here we are sentencing petty thieves to life sentences because of "three strikes and you're out" laws across this country. We sentence folks caught with crack cocaine to more severe sentences than those caught with powder cocaine. We sentence financial swindlers to terms of years in federal prisons.
But we let HSBC off the hook in exchange for a chunk of change. We're willing to forget about the money laundering services provided to the Mexican drug cartels. We don't care that you provided services for Iran and other countries when the federal government said it was a no-no.
The local prosecutor won't considering reducing a felony to a misdemeanor for a young man with no criminal history who happened to be in the wrong place at the wrong time. He stole nothing and he harmed no one. But, no. We can't reduce that charge.
And we can't go a different direction on that DWI, either. He can take the deal or he can go to trial.
Of course neither one of them had $1.9 billion handy. Neither one of them was too big to fail.
F. Scott Fitzgerald was right when he said the rich were different than us. They are. They are treated differently. We mustn't ruin a life. We mustn't bring down a big bank.
But the rest of y'all can go to hell. No special deals. No breaks. You do the crime, you do the time. Anything else would be patently unfair.
Everyone knows the system is rigged. The federal government's decision not to prosecute a bank in exchange for filthy lucre is but the latest example. It won't be the last. Meanwhile go tell that young man in the holdover that the state just can't go below four years on its offer. After all, he's not too big to fail.
See also:
"Dickering over the price," Simple Justice (12/13/2012)
Monday, December 17, 2012
I've got a theory about that
The other day Scott Greenfield pointed out that law schools are failing their students. And he had the bar exam pass rates to prove it. He asked just what is being taught in law school these days.
The problem, according to Mr. Greenfield, is that the academy is out of touch. Law profs across this country are so caught up in their own esoteric research and scholarship that they have neglected to teach impressionable young minds how to be a lawyer.
There is no reason for the high failure rates when it comes to the bar exam. The problem can't be put solely at the feet of law students who have to pay to take an additional bar review course after three years of school in order to pass the test. The problem is either that the modern law school curriculum is not rigorous enough to prepare students for the exam or that law schools aren't weeding out the students who aren't cutting it (and won't cut it).
Over at Doug Berman's Sentencing Law and Policy, you can see firsthand the disconnect between the academy and the practice of law in the trenches. Richard Frase, a law prof at the University of Minnesota Law School, has just published a book called Just Sentencing: Principles and Procedures for a Workable System.
In a series of guest posts on Mr. Berman's blawg, Mr. Frase summarizes the arguments in his book. He likes to talk about sentencing theories. Such things as retributive justice, crime control and "just desserts." That is all well and good. It makes for a thick book and a heavily annotated law review article. But it bears little of no relevance to what goes on in the trenches.
No one in the criminal courthouse walks around espousing their sentencing theory. A prosecutor writes a number on the cover of the file and expects our client to accept it and thank him profusely. Now that number is generally just a starting point - and the defense attorney counters with a different number - or idea.
If we can't get the case dismissed we want the lowest number possible or a way of keeping our client out of prison. The prosecutor is bound by "office policy" and what the judge will accept. The negotiations are governed by which side has more to lose by going to trial. Instead of a book on sentencing theories, criminal defense lawyers would be much better off reading books on poker theory.
While sentencing theory might make for nice conversation at a cocktail party or a reception, it's application in real life is pretty much non-existent. Instead of being able to argue the finer points of restorative justice theory, a young attorney would be better served had he been taught how to investigate a case and how to spot weaknesses in them.
Scholarship is good, but law schools mustn't lose sight on the most important part of their mission - to teach a classroom of young men and women how to be a lawyer.
The problem, according to Mr. Greenfield, is that the academy is out of touch. Law profs across this country are so caught up in their own esoteric research and scholarship that they have neglected to teach impressionable young minds how to be a lawyer.
There is no reason for the high failure rates when it comes to the bar exam. The problem can't be put solely at the feet of law students who have to pay to take an additional bar review course after three years of school in order to pass the test. The problem is either that the modern law school curriculum is not rigorous enough to prepare students for the exam or that law schools aren't weeding out the students who aren't cutting it (and won't cut it).
Over at Doug Berman's Sentencing Law and Policy, you can see firsthand the disconnect between the academy and the practice of law in the trenches. Richard Frase, a law prof at the University of Minnesota Law School, has just published a book called Just Sentencing: Principles and Procedures for a Workable System.
In a series of guest posts on Mr. Berman's blawg, Mr. Frase summarizes the arguments in his book. He likes to talk about sentencing theories. Such things as retributive justice, crime control and "just desserts." That is all well and good. It makes for a thick book and a heavily annotated law review article. But it bears little of no relevance to what goes on in the trenches.
No one in the criminal courthouse walks around espousing their sentencing theory. A prosecutor writes a number on the cover of the file and expects our client to accept it and thank him profusely. Now that number is generally just a starting point - and the defense attorney counters with a different number - or idea.
If we can't get the case dismissed we want the lowest number possible or a way of keeping our client out of prison. The prosecutor is bound by "office policy" and what the judge will accept. The negotiations are governed by which side has more to lose by going to trial. Instead of a book on sentencing theories, criminal defense lawyers would be much better off reading books on poker theory.
While sentencing theory might make for nice conversation at a cocktail party or a reception, it's application in real life is pretty much non-existent. Instead of being able to argue the finer points of restorative justice theory, a young attorney would be better served had he been taught how to investigate a case and how to spot weaknesses in them.
Scholarship is good, but law schools mustn't lose sight on the most important part of their mission - to teach a classroom of young men and women how to be a lawyer.
Monday, December 10, 2012
He's out for a scalp
Doug Berman is on the warpath. In the aftermath of the accident that killed Dallas Cowboy linebacker Jerry Brown, Mr. Berman wants the scalp of Josh Brent.
Yes, the death of Mr. Brown is a tragedy. Maybe Mr. Brent was intoxicated and maybe he wasn't. We won't know anything until we see the results of the mandatory blood draw performed in the early hours of Saturday morning.
Mr. Berman is upset that Mr. Brent had a prior DWI conviction while in college in Illinois back in 2009.
I get it. The majority of folks who get arrested for driving while intoxicated do whatever it takes to prevent themselves from being in that position again. It would appear that Mr. Brent didn't take that lesson to heart. But, we must also keep in mind that Mr. Brent has only been accused of intoxication manslaughter. We haven't seen or heard the evidence. Until the state proves the elements of intoxication manslaughter beyond all reasonable doubt, Mr. Brent is innocent.
Mr. Berman claims that if the penalties for a DWI conviction were stiffer then Mr. Brown would still be alive today. The fact is that a first offense DWI is just one step removed from a traffic ticket. Most folks arrested for driving while intoxicated are arrested on the basis of their driving, the smell of alcohol on their breath and their performance on a set of roadside calisthenics.
A sentence of two years probation with a 60-day jail sentence (we don't know if the jail time was suspended) is nothing to sneeze at for a misdemeanor. That's two years of reporting to a probation officer, two years of no alcohol and two years of being subject to random drug tests.
Unless Mr. Berman proposes making a first-time DWI a more serious offense, there is no stiffer sentence that what Mr. Brent received. If he proposes making driving while intoxicated a felony offense he must be prepared for more acquittals at trial. I have a feeling that juries would be a little bit less inclined to convict a person of a felony based on the paltry evidence and junk science put forth in a DWI prosecution.
The needless loss of any life is tragic. But to use such a tragedy in order to promote legislation criminalizing conduct or enhancing existing punishments is a step in the wrong direction. Our state and federal penal codes are full of acts named after a person who died tragically that only serve to weaken our protections under the Bill of Rights.
So, Mr. Berman, if you want stiffer sentences for first-time DWI offenders, are you going to require concrete proof that the defendant was intoxicated at the time of driving or will you be satisfied with what passes for scientific evidence in a DWI prosecution? While pushing for stiffer sentences are you going to fight attempts to weaken the constitutional protections of those accused of driving while intoxicated?
Probably not. That might require getting your hands dirty.
Yes, the death of Mr. Brown is a tragedy. Maybe Mr. Brent was intoxicated and maybe he wasn't. We won't know anything until we see the results of the mandatory blood draw performed in the early hours of Saturday morning.
Mr. Berman is upset that Mr. Brent had a prior DWI conviction while in college in Illinois back in 2009.
I get it. The majority of folks who get arrested for driving while intoxicated do whatever it takes to prevent themselves from being in that position again. It would appear that Mr. Brent didn't take that lesson to heart. But, we must also keep in mind that Mr. Brent has only been accused of intoxication manslaughter. We haven't seen or heard the evidence. Until the state proves the elements of intoxication manslaughter beyond all reasonable doubt, Mr. Brent is innocent.
Mr. Berman claims that if the penalties for a DWI conviction were stiffer then Mr. Brown would still be alive today. The fact is that a first offense DWI is just one step removed from a traffic ticket. Most folks arrested for driving while intoxicated are arrested on the basis of their driving, the smell of alcohol on their breath and their performance on a set of roadside calisthenics.
A sentence of two years probation with a 60-day jail sentence (we don't know if the jail time was suspended) is nothing to sneeze at for a misdemeanor. That's two years of reporting to a probation officer, two years of no alcohol and two years of being subject to random drug tests.
Unless Mr. Berman proposes making a first-time DWI a more serious offense, there is no stiffer sentence that what Mr. Brent received. If he proposes making driving while intoxicated a felony offense he must be prepared for more acquittals at trial. I have a feeling that juries would be a little bit less inclined to convict a person of a felony based on the paltry evidence and junk science put forth in a DWI prosecution.
The needless loss of any life is tragic. But to use such a tragedy in order to promote legislation criminalizing conduct or enhancing existing punishments is a step in the wrong direction. Our state and federal penal codes are full of acts named after a person who died tragically that only serve to weaken our protections under the Bill of Rights.
So, Mr. Berman, if you want stiffer sentences for first-time DWI offenders, are you going to require concrete proof that the defendant was intoxicated at the time of driving or will you be satisfied with what passes for scientific evidence in a DWI prosecution? While pushing for stiffer sentences are you going to fight attempts to weaken the constitutional protections of those accused of driving while intoxicated?
Probably not. That might require getting your hands dirty.
Friday, June 15, 2012
Making an example
"We were hoping for the maximum," he said, "to make an example."
Yesterday R. Allen Stanford was sentenced to 110 years in prison after being convicted of multiple counts of defrauding investors by selling phony CD's in an offshore bank.
Mr. Stanford is 62 years old. The sentence, imposed by US District Judge David Hittner, went way overboard. Mr. Stanford will never set foot outside prison again as a free man. He will die behind bars. He would die behind bars if the sentence were 30 years -- probably even much less than that.
A 110 year sentence serves no useful purpose. It gives the prosecutor a big number to put on his resume; maybe white-shoe firms like big numbers. It makes Judge Hittner look like a real tough guy. But why bother?
So what if the federal guidelines - they're advisory, you know - mandate a ridiculously long sentence? Are our federal judges nothing more than clerks who plug in numbers and trace their finger along a column or row in a book? Shouldn't these jurists who were placed on the bench for life have a little discretion at their fingertips?
The quote at the top was from Jaime Escalona, a defrauded investor from Venezuela, who "represented" the Latin American victims of Mr. Stanford's pyramid scheme. The maximum he speaks of was 230 years (an even more absurd big number). What's the example you wish to set, Mr. Escalona?
Those who lost their money will likely never see a penny of it. It's gone. Even those who thought nothing of a high interest rate on a CD, should understand that. It doesn't matter if Mr. Stanford lives to the ripe old age of 172 -- they're never getting paid.
And, as an added bonus, as Mr. Stanford ages and begins to suffer from those maladies that affect older folk, guess who'll be footing that bill. That's right. Us. We'll be the ones on the hook for the increasing medical costs of caring for an aging man.
Mr. Stanford didn't do his case any good when he refused to acknowledge that he defrauded the investors. The judges who like to run their fingers along the columns and rows of the advisory sentencing guidelines tend to take a dim view of someone who refuses to accept responsibility for his actions. They like to use the term upward departure.
Well, sometimes juries convict the wrong person. If Mr. Stanford believes he was wrongly convicted and is looking to appeal, confessing his guilt to the court isn't the best course of action. Harmless error, anyone?
Mr. Stanford ran a pyramid scheme. He promised outrageous returns for supposedly safe CD's which wealthy folks hungry for more money ate up. When he couldn't convince enough people to cough up money he could use to pay the earlier "investors," his company collapsed. He stole nearly $6 billion.
And, lest I forget, Judge Hittner also made Mr. Stanford personally responsible for restitution. Excuse me, Judge Hittner, how the hell is a man sentenced to life in prison supposed to come up with that kind of dough?
And what would the penalty be for not paying it back? Would he have to sit it out for $100 a day?
Mr. Stanford was found guilty. He stole a lot of money. He should go to prison. But the sentence handed out by Judge Hittner was ridiculous.
Just what kind of example did he make?
Yesterday R. Allen Stanford was sentenced to 110 years in prison after being convicted of multiple counts of defrauding investors by selling phony CD's in an offshore bank.
Mr. Stanford is 62 years old. The sentence, imposed by US District Judge David Hittner, went way overboard. Mr. Stanford will never set foot outside prison again as a free man. He will die behind bars. He would die behind bars if the sentence were 30 years -- probably even much less than that.
A 110 year sentence serves no useful purpose. It gives the prosecutor a big number to put on his resume; maybe white-shoe firms like big numbers. It makes Judge Hittner look like a real tough guy. But why bother?
So what if the federal guidelines - they're advisory, you know - mandate a ridiculously long sentence? Are our federal judges nothing more than clerks who plug in numbers and trace their finger along a column or row in a book? Shouldn't these jurists who were placed on the bench for life have a little discretion at their fingertips?
The quote at the top was from Jaime Escalona, a defrauded investor from Venezuela, who "represented" the Latin American victims of Mr. Stanford's pyramid scheme. The maximum he speaks of was 230 years (an even more absurd big number). What's the example you wish to set, Mr. Escalona?
Those who lost their money will likely never see a penny of it. It's gone. Even those who thought nothing of a high interest rate on a CD, should understand that. It doesn't matter if Mr. Stanford lives to the ripe old age of 172 -- they're never getting paid.
And, as an added bonus, as Mr. Stanford ages and begins to suffer from those maladies that affect older folk, guess who'll be footing that bill. That's right. Us. We'll be the ones on the hook for the increasing medical costs of caring for an aging man.
Mr. Stanford didn't do his case any good when he refused to acknowledge that he defrauded the investors. The judges who like to run their fingers along the columns and rows of the advisory sentencing guidelines tend to take a dim view of someone who refuses to accept responsibility for his actions. They like to use the term upward departure.
Well, sometimes juries convict the wrong person. If Mr. Stanford believes he was wrongly convicted and is looking to appeal, confessing his guilt to the court isn't the best course of action. Harmless error, anyone?
Mr. Stanford ran a pyramid scheme. He promised outrageous returns for supposedly safe CD's which wealthy folks hungry for more money ate up. When he couldn't convince enough people to cough up money he could use to pay the earlier "investors," his company collapsed. He stole nearly $6 billion.
And, lest I forget, Judge Hittner also made Mr. Stanford personally responsible for restitution. Excuse me, Judge Hittner, how the hell is a man sentenced to life in prison supposed to come up with that kind of dough?
And what would the penalty be for not paying it back? Would he have to sit it out for $100 a day?
Mr. Stanford was found guilty. He stole a lot of money. He should go to prison. But the sentence handed out by Judge Hittner was ridiculous.
Just what kind of example did he make?
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