I receive a fair amount of e-mail. Much of it is fascinating.
Recently, I received an e-mail from, I presume, England. It was written by a trainee solicitor.* From a class in comparative law, she became interested in sentencing in the US federal courts. Most particularly, she was amazed by cases where defendants who were near death were sent to prison nevertheless. She wonders why. I asked whether I could use her e-mail on the blog, and she graciously consented.
Read the e-mail. Comment please–give our colleague your explanation and views. I will briefly state my views following the text of the e-mail.
Great blog. My question falls under the category of what to do when the defendant is terminally ill/dying or how that should factor into determining the appropriate sentence.
Disclosure: I am from the other side of the pond. I studied American criminal justice as a part of a comparative course in criminology/criminal justice/human rights and I would like to know if you have any thoughts/observations/comments on the following:
In England & Wales, there is a saying, “we have judges sentence offenders for a reason.” Many victims are often bitter and full of hatred (for good reason of course).
I understand that the guidelines in the US are now advisory. But with/without the guidelines, how do you strike a balance in an individual case where there are truly unique factors. Three cases I think underscore how difficult it is to strike a right balance with or without guidelines:
In United States v. Robert E. Lee, Jr., Case No. 3:13-CR-113 (JAM) (D.Conn.), the defendant ran a $1.1 million ponzi scheme over a number of years. In the last few years of his investment advisory scheme, he was diagnosed with synovial sarcoma and he realized he was going to die. He was arrested, indicted and pleaded guilty. He was sentenced to 63 months imprisonment on or about March 9, 2015. This was a guideline sentence (bottom of the guidelines). His sentencing memorandum was short and to the point: the defendant is going to die before he even starts his sentence give him a break. Defense counsel had moved to postpone sentencing; however, the government opposed because the victims wanted to “look him in the eye” and confront him. He was sentenced and at the sentencing the judge was not very sympathetic. The defendant was ordered to report to prison on May 1, 2015. Article on sentencing can be found here:
This defendant died on April 16, 2015. He left behind two sons and a wife. The victims wanted the judge to throw the book at him. I get the bitterness and the anger, but I don’t understand how the guidelines and victims rights (their need for closure) takes such a precedence over the defendant’s life. The guy was dying – there was no dispute about that. How can this sentence be justified. Was this was symbolism? Was this retribution? If this was “retribution” for his offense, was it proportionate?
I have attached the 2nd Circuit letter from PACER [the attachment has not been reproduced] confirming his death and the defense sentencing memorandum. Don’t the guidelines allow for some compassion here?
United States v. Juncal, et al Emmerson Earl Corsey, Docket No. 10-1800-CR (L) (2nd Cir.), District Court Case No. 2:2006-CR-0264 (E.D.N.Y.) This is an atypical case. The defendants attempted to defraud a non-existent entity with the wildest story. It was a fraud scheme (if it can be called that) involving non-existent Siberian pipelines and unrecognized native-American Indian tribes. The district judge originally sentenced the four men to 20 years (the statutory max). The 2nd Circuit found that the judge made a procedural error and remanded for re-sentencing. However, it avoided any holding on whether the sentences were substantively reasonable. One concurring panel member, Underhill J., wrote a several page opinion that was widely quoted in the press, but it was not part of the holding. You can access it here: http://caselaw.findlaw.com/us-2nd-circuit/1639675.html
On remand, the defendants’ attorneys all tried again. The judge “departed” and sentenced the men to 16 years. This, even though, most of these individuals were elderly and suffered terminal illnesses. Again, the sentencing court ignored their pleas that they should not die in prison. Corsey died back in January 2015 awaiting re-sentencing.
United States v. Michael Jude Fay, Case No. 3:07-CR-198 (JBA). This case involved a crooked priest. The priest stole about $1 million from the Catholic church. However, he also had terminal cancer. At sentencing, he begged the judge not to send him to prison. The judge responded that she wanted to send a message that “not even the collar” can protect you from prison: http://www.nytimes.com/2007/12/05/nyregion/05priest.html
In each of the cases above there was no dispute that these individuals were really ill and going to die. My understanding of the US guidelines is that 5K2 and other sections explicitly permit downward departures.
What motivates or how does one justify these sentences either theoretically or practically under 3553(a)? Is it symbolism? Is it disproportionate (or proportionate) retribution? Is it to protect the public from the terminally ill? Is it to avoid recidivism (in case they are going to come back to life and re-offend)? Is it that judges just don’t want to appear soft on crime?
I am a European lawyer (trainee solicitor, started my training contract in January and criminology and sentencing always caught my interest – each sentencing memorandum is like a short novel, often very sad). Under the UK guideline scheme, these individuals would have received suspended sentences because of human rights laws. In continental Europe, these individuals would have probably received probation as long as their health situation was thoroughly verified.
I am at a loss as to understand the American criminal justice system. Is it just, “will of the electorate,” = “politics of tough on crime” = sentences that don’t make sense? I have also read that somewhere in 3553, or some related provision (it escapes me at the moment), that sentences should be no greater than necessary to satisfy the aims of sentencing. If that is true, how can the sentences in the above cases be no greater than necessary?
I would have been really interested in seeing some of these sentences reviewed on appeal for substantive reasonableness. Assuming these sentences were procedurally reasonable, would these sentences have been substantively reasonable?
If you wish to discuss this on your blog, feel free to re-phrase what I said or I am asking. I have not been very articulate in writing this email and I may have muddled through some points but after spending a few hours trying to find the sentencing memos and reading the same, these are really depressing cases but I think they are worth talking about because they provide a more human face to sentencing.
Thanks for any response you might have.
Sarah, here are some of my thoughts:
- I have sentenced defendants to prison who were close to death in a number of cases. Before doing so, I have almost always asked the Bureau of Prisons (BOP) for an opinion about whether the offender’s medical needs (such as hospice care) could be provided in prison. Almost always, the BOP tells me they can handle the medical situation and they provide background. But, once in a while I will receive an opinion from the BOP that suggests that the BOP could handle the situation but implies that the condition could better be addressed in the community. In those rare situations, I have varied (departed) to allow the defendant to die a free person even if the offense of conviction is very serious.
- Even though a defendant is near death, I will normally sentence him or her to prison if the offense of conviction is very serious. I do this largely (1) to promote respect for the law; (2) to impose just punishment; (3) to reflect the seriousness of the offense; and, most significantly, (4) to afford general deterrence. See 18 U.S.C. §3553(a) (factors to be considered). For example, a producer of child pornography, who used real children from his family or neighborhood, would not likely escape prison although he was certain to die in a year or so from small cell lung cancer.
- The Guidelines policy statement found at U.S.S.G. §5H1.4 states that “in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than imprisonment.” I have relied upon this and related authority to vary (depart) for a defendant who is near death if the offense of conviction is not terribly serious.
- While the BOP has seldom used the authority in the past, it has the power to release a defendant on death’s door. See 18 U.S.C. § 3582(c)(1)(A). That has happened in several of my cases. As of April, 2013, the Department of Justice has begun to prod the BOP to exercise this authority more often. See U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division, The Federal Bureau of Prisons’ Compassionate Release Program (April 2013).
I very much appreciate your engagement and applaud you for your interest in our federal sentencing system particularly given the pressure you must feel as trainee solicitor. Your perspective is very informative, and your questions thought-provoking.
Update: See Douglas A. Berman, The never-aging (and ever-costly) story of ever-aging US prison populations, Sentencing Law and Policy (May 3, 2015).
*”In the United Kingdom, Australia, Hong Kong and certain other English common law jurisdictions, a trainee solicitor is a prospective lawyer undergoing professional training at a law firm to qualify as a full-fledged solicitor. This period of training is known as a training contract and usually lasts for two years. . . .
Before they are eligible to train, the trainee must first have an undergraduate degree in law, or another degree and later taken a conversion course (i.e. the Common Professional Examination or Graduate Diploma in Law), and then completed the Legal Practice Course (LPC).
During the training contract, trainees are required to gain practical experience in at least three distinctive areas of law. On successful completion of the training contract, the trainee will qualify and be admitted as a solicitor.”
Wikipedia, Trainee solicitor (last accessed May 1, 2015) (footnotes omitted).