Sentencing a defendant who will soon die–good questions from across the pond

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: 
 
Some background: 
 
I have read previously on your blog (forgive me if I make errors) that one of reasons you follow the guidelines, or believe you should follow the guidelines, is that they represent the “will of the electorate.” https://herculesandtheumpire.com/2014/12/27/answering-interrogatories-focusing-on-sentencing-from-a-law-student/ “More to the point, those are purely policy choices that in my estimation should be made in a democratic environment that reflects the political will of the electorate.” [Emphasis in e-mail.]
 
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: 
 
Case 1: 
 
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? 
 
Case 2: 
 
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.
 
Case 3: 
 
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
 
He received a few postponements of his self-surrender date and after his final postponement request was denied, he entered prison and died shortly afterwards: http://www.darientimes.com/22673/father-fay-58-dies-of-cancer-in-prison/
 
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. 
 
s/Sarah Wilson 
Sarah, here are some of my thoughts:
 
  1. 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.
  2. 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.
  3. 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.
  4. 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).

RGK

*”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).

 

19 responses

  1. I can’t speak to federal courts, as I practice in a state court, however, the deathly, or even non-so deathly illness of a criminal defendant rarely has any effect on a sentencing judge. The relevant state sentencing statute requires judges to place ‘safety of the community’ above all other sentencing factors. So, the office I work for has had several clients die shortly after being sentenced, before completing even minimal treatment-oriented sentences. I’ve had a client die in local jail for lack of diabetes medication because the (out-side contracted) medical officer didn’t get it to him, and the jailers figured it wasn’t their problem.

    Criminal defendants are not people entitled to human rights in the eyes of the legislative (and often public) community, until that changes, judges will be required to sentence to prison regardless of even terminal illness. Mental illness treatment in my state is only readily available for indigents in state custody, often the prison system because of the offenses committed in the thralls of those conditions. But the crime outweighs the person, and we (as a people) want to treat the crime, and not the person.

    As a person of faith, I hope that when my errors are judged, i’m not held to the standard our criminal defendants are.

  2. Dear Rural defender:
    As conservative as I am, I sincerely hope that the estate of the man who died in prison for lack of diabetes medication sued the s*** out of those responsible for his death. There was simply no excuse for that at all.
    Robert

  3. I wish more people would respond to this post – this is something that really should be discussed more openly and broadly. People talk about Baltimore nowadays but what about this? Its state sanctioned death in prison for non-violent offenders.

  4. Is there any information about legislative intent in case of a terminally ill person being sentenced?

  5. No, no, no. It is NOT state-sanctioned death. It is death, period. The “location” at time of death is the issue. As I understand these situations the criminal is a dead man walking at time of sentencing – the state is not the instrument of death. Compassion/fairness is an issue for consideration, but it is separate from the issue of the cause of the death.

  6. To Sarah Wilson: I applaud your interest in our criminal justice system, but to really understand it you need to know something about our cultural history. You see, Americans, and thus American jurisprudence, is based on punishment of evil. The concept of treatment and rehabilitation for offenders, the norm in Europe for decades, is almost nonexistent here. Instead, our early Christian (Puritanical) roots were all about hell-and-damnation sermons and original sin, and the necessity to punish every infraction. There are more people in prison in the United States, per capita, than China or Russia or any developed country: http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate Judges (present company excluded) are often elected, and the more people a judge has sentenced to lengthy prison time, the more votes he gets. Add to that the bizarrely American idea of “for profit” jails run by corporations, and you have American exceptionalism in jurisprudence.

    The incarceration rate is inflated largely because of sentencing guidelines for petty, non-violent drug crimes, but the idea of serious punishment for even small offenses is generally embraced by Americans, on juries and by electing hanging judges (a uniquely Americanism if there ever was one). Americans like the idea of putting offenders in jail and throwing away the key. If a nonviolent offender is already at death’s door, that’s irrelevant. “Show no mercy” is as American as apple pie.

  7. Being extremely old or extremely ill is a mitigating factor (as is being extremely young for different reasons), but there is still the seriousness of the case and the danger posed by a defendant. If you have a 70-year old in bad health who is facing his fourth DWI in the last five years and is driving without a license, then giving them a pass because they are likely to die soon means giving them a good chance at taking others with them. The reality is that the number of elderly defendants who commit the type of crime that even merits consideration for incarceration is small as a percentage of the elderly and as a percentage of criminal cases.

    At least in the state system, there are very few first time elderly offenders, and many of them have been in and out of prison for most of their life. For these defendants, they are not looking at getting the best end of life care on the outside either. Given that they have a better right to health care in custody than outside of custody, I am not sure that the human rights concerns are quite the same in the U.S. as in Europe.

    p.s. Non-violent is not synonymous with minor. I know that the federal system is different than the state system. In the state system, most first-time offenders with minor felonies (e.g. theft, possession, property damage) tend to get probation. I do not see advanced years as a free pass to spend the last five to ten years of life committing repeated offenses.

  8. I suppose that Dept. of Correction for each state collects and reports different types of facts about prison inmates so what can be concluded about the age prisoner at the time of the offense is known for Iowa because they provide that data. I have no idea if other states and the federal BOP also provide that data.

    In any case in Iowa it is very unusual for a person in prison to have been older than 60 at the time of the offense unless they are a repeat offender (alcohol, drug and sex). On the other hand a rather high percentage were juveniles at the time of the offense and were not admitted to adult prison until they were 18 or older. Keep in mind that Iowa has a relatively small prison population and the largest urban county has a population under a half a million.

    What data I have seen indicates that there are large differences between states and within Iowa there are large differences between counties and it is possible that is also the case in Ohio and Michigan.

  9. Was focusing more on sentencing than parole, looking at inmate numbers for my state, less than 1% of the inmate population represents inmates who were 65 or older when they were sent to prison. Less than 1% of the females and approximately 2% of the males in prison are over 65. Based on the numbers, about one-third of our senior citizen population is incarcerated for new offenses (committed after turning 65) and two-thirds are incarcerated for offenses committed before turning 65 but are stats are not broken down in enough detail for me to figure out how long before or how many are parole ineligible.

  10. I personally have never understood people who feel sympathy for predator felons and their rights, while at the same time not only ignoring, but often criticizing the rights and feelings of the victims and of society as a whole. My suspicion is that this is a way of coping with the harsh reality that anyone can be a victim of crime. For some, empathizing with criminals gives them a false sense of assurance that they will not be victimized by the very people that they support.

    As far as the moral superiority implied by our English colleague, I will point out that the violent crime rate in England is currently more than double (yes, check the official crime statistics) than that of the United States. I will also point out that, in my opinion, it is morally corrupt and unconscionable to allow criminals to walk because of their ill health or even impending death. And yes, retribution is a valid and moral justification for punishment, espoused by philosophers such as Kant, and by not-so-philosophical politicians, such as the California legislature. (“The Legislature finds and declares that the purpose of imprisonment for crime is punishment.” Cal. Penal Code Sec. 1170(a)).

    In any case, to address the actual argument, I will first say that we are all dying. From the moment we are born, we get closer and closer to death as each second ticks by. So the question is, at what point do we say that a criminal felon should walk away scot-free because he or she is dying? One year to live? Two years? Ten years? 10 days? None of us can control where and how we die. But certainly, if you don’t want to die in prison, then don’t commit the crime! The sociopath predator who steals people’s life savings and ruins lives so that he can live in luxury, has chosen a path that could well lead him to dying in prison. To me, it would be immoral if he were not punished for his crime.

    As a law student, I got the opportunity to intern at the SEC’s enforcement division, as well as for the District Attorney’s office. The amount of harm that Ponzi schemes and other financial fraud has caused is incalculable. People’s lives have been ruined. Some have committed suicide. Many have been left penniless, unable to support themselves and their families. Old people who were counting on their savings for retirement will now die in poverty and misery. Where is the justice for them, if we let their predator go unpunished?

    The human need for justice and vengeance is one of our most ingrained evolutionary traits. Without enforcing it, our society would collapse. As citizens in a society, we have essentially made a deal with out government: We will forgo individual revenge, but we expect the state to punish the ones that harm us. The state has a moral imperative to do so.

  11. I personally have never understood people who feel sympathy for predator felons and their rights

    Wow…I sincerely hope you are not a prosecutor and have no responsibility for meting out punishment. The fact that you have made it this far in life, as a lawyer nonetheless, and don’t understood the necessity for basic human rights, even for the most despicable, is shocking. I thought the lynch-mob mentality of eschewing rights for vengeance was something that education could remedy, but apparently not…

    Humans are incredibly complex creatures and even the most most monstrous offenders can merit sympathy, even as we punish them severely. I won’t even address the bedrock that Western society is built on, you know – rights, and why they need to be exist for the most heinous in order exist for you…

    The fact you don’t understand why predator felons need their rights means you don’t understand why you yourself need rights.

  12. Jack, I guess if you have no logical arguments to put forth, you just resort to ad hominem attacks and schoolyard bullying.

    “You don’t understand the necessity for basic human rights… You know, rights… You don’t understand why you need rights… You have a lynch-mob mentality…” Oh, such eloquence! Instead of responding to my arguments, you throw out ridiculous and unfounded accusations.

    It’s not really worth responding to you, but I’ll say this: First of all, read the entire sentence that I wrote, and don’t take the first part out of context:

    “I personally have never understood people who feel sympathy for predator felons and their rights, WHILE AT THE SAME TIME not only ignoring, but often criticizing the rights and feelings of the victims and of society as a whole.”

    To make it simpler for you, I don’t understand people who are more concerned about criminals and their rights than their victims and their rights. When I talk to the the 75 year old man who lost everything because a criminal stole all his life savings in a Ponzi scheme, I feel sympathy for the victim, not the criminal.

    Second, the criminals we are talking about are convicted felons. They went through a fair trial, where all their constitutional rights were respected. They were found guilty by a jury of their peers. How can you possibly claim that I advocate that criminals do not have rights? Now, you may think that they have rights beyond what the constitution and the laws give them. You may think that people that will die in prison should not be imprisoned at all. But that is your interpretation of what rights criminals have, not the law’s and not the courts’. This is not lynch mob mentality. This is our constitutional justice system!

    Yes, felons have civil rights, like the rest of us. But once they are convicted, they lose some of those civil rights. They lose their freedom. They lose the right to vote. That is the law, and that is justice. And by the way, the victims have rights too. And they have the basic human right to be heard, and they have the basic human right to get justice.

  13. John A., you should keep your personal adhominem attacks on the poster to yourself. You are misinformed and didnt read what was posted here.

    1. Your broad assertion that “violent crime rate in England is currently more than double (yes, check the official crime statistics) than that of the United States” is dubious. Just a note: the number of homicides and gun crimes in the UK is no where near the rate in the US. Those are backed-up by official statistics. As for whether more violent crime is committed in England (btw you should refer to it as England & Wales not just England), it depends on the offense, because some offenses including yelling and screaming at someone or stalking can be categorized as violent in England & Wales.

    2. In England & Wales, and across most of Europe, there is this concept called “proportionality.” The deal a citizen makes with the Government is not to extract vengeance in his/her stead. Rather, in the US federal system, the object of sentencing is to fulfill the goals listed in 3553(a) and retribution has to be proportional. If not, if the whole goal is vengeance, why not just take a defendant and throw him to his accusers and give them meat cleavers to hack him to death? Your reasoning just falls flat on its face.

    As to white collar crime and the US Sentencing Guidelines, if your measure of success is vengeance than the system is working perfectly fine. If the measure of success is whether the goals set out in 3553(a) are being fulfilled I think the answer has to be no. According to the various reports I found online (the US Attorneys Office and Justice Department release statistics on recidivism and restitution orders), only 3.5% of restitution orders are ever repaid. That’s because most are still in jail, usually for decades and prison work I doubt pays very well. And, perhaps, once these individuals are released, by tarring and feathering them beyond recognition, they probably do not have earning power left to ever earn enough money to pay back their debts.

    3. I have no doubt that Ponzi schemes cause harm to many individuals. But your answer is broad and doesn’t focus on the cases presented. If you click on the links in the Judge’s post, in case number 2, there was never even a risk of loss. The entire offense was described as “a three stooges” act in the Court of Appeals opinion. Their crimes Case number 3, describes a crooked priest. The loss was born by the money-rich Catholic church.

    4. I also checked in England & Wales, and although they punish white-collar offenders (and most others) more leniently, they don’t have higher recidivism rates.

    The goal of sentencing in England & Wales is also “punishment.” But punishment is subject to proportionality analysis.

    And once the punishment is over, in England & Wales, they have this thing called “The Rehabilitation of Offenders Act 1974.” It means most non-violent offenses (those sentences of less than 4 years), after a certain period of time has passed, become “spent” and no longer stain an ex-offender’s record. It is similar to the US expungement process but free of politics because it is automatic. (Hey, there is a solution to the broken pardon system in the US, remove the politics out of it and you just might have a working clemency/pardon process).

    There are similar provisions in France, Germany, Norway, Sweden etc. And you know what? They avoid the situation in the US were nearly 70 million Americans have criminal records and all the problems that go with it. Nearly 30% of young American males (white/black/latino) will have a criminal record by the time they reach their mid-20s. A few survive the horrors of a criminal conviction….As for victims, no, they do not have a right to vengeance. See # 2 above. If you believe that, then forget about 3553(a), forget about judging, and just throw everyone in a room and get it done and over with.

    The judge’s in these cases were cowards. No one is perfect, but condemning people to die in prison for money crimes is disgusting.

  14. To John A:

    “Where all their constitutional rights were respected”? Really? This may shock you, but constitutional rights, not just civil rights, continue after conviction. What you have described, is what is wrong with America today. The UK has a different approach, and by golly, it seems to be working better. There are no waves of corporate criminals parading around the streets because they were “not deterred.” Fraud crimes are not rampant. Victims are not sobbing in the streets because they didn’t get their pound of retribution.

    As for, “once…convicted…they lose their freedom,” yep, subject to proportionality. See 18 USC 3553(a): “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2).” I admit that this has rarely been enforced and it is a bit of a toothless provision, but its in there. It just never seems to be followed.

  15. Mr. Anonymous, I enjoyed your post. You start by condemning my ad hominem attack, and you proceed to call me “misinformed” in the very next sentence. And then you call the judges that made a decision that you disagree with “cowards.” But don’t worry, I will not call you a hypocrite.

    First, let me say that I agree with you that homicide rates are higher in the U.S. than in England (& Wales, since you insist). But every other violent crime has a much higher rate. Rape, aggravated assault, robbery, all much higher. And while this is a complex issue, I believe that laxness towards criminals is a factor.

    On the other hand. perhaps it is you who did not read what I wrote. Yes, the English solicitor referred to three cases, but the main point was the general treatment of dying felons, and not just those specific cases. In the first case, there were “real” victims. And I suppose you are advocating that it is okay to steal millions from a church because it is rich? That priest literally betrayed everything that was sacred, and violated his oath to God as well as the laws of the state. Even if you don’t believe in God, remember that the money that he stole at least partially came from the contributions of his flock, many of whom I am sure could barely afford what they gave to the church. This is the person you are defending?

    And sorry, but you are wrong about the victims’ rights to “vengeance.” Federal law (and the law in most states) allows victims to present victim impact statements to the judge, which the judge is allowed to consider when imposing sentence. So yes, crime victims have the right to be heard, and the right to influence the criminal’s punishment.

    Also, as I stated, states like California make it explicit, that the purpose of incarceration is punishment.

    I am sorry, but the law is not what you wish it to be. You keep mentioning 3553(a). In fact, one of the sentencing factors is “to provide just punishment for the offense.” You believe that if someone is dying then jail time is not just punishment. The law and the judges that apply it disagree. You think it’s unjust; you think it’s disgusting. So what? You don’t get to make the laws. I am sure that most people would think that letting those criminals off so they can die in peace is disgusting. At least our elected representatives and our judges think so.

    Another factor of 3553(a) is ” to reflect the seriousness of the offense.” This also reflects the impact on the victim. Also, ” to promote respect for the law” and “to afford adequate deterrence to criminal conduct”, All those weigh in favor of prison sentences. Studies have shown that the deterrent effect of prison is most prevalent in white collar crimes. Certainly, seeing someone die in prison for a financial crime is a deterrent.

    But my main puzzlement remains, and is something that no advocate of not imposing a prison sentence has addressed. What about the victims? Aren’t they victimized again by seeing their tormentor and life-destroyer walk away scot-free? Don’t you feel any empathy for them? Don’t you think that they have the right to see their victimizer punished? Where is your humanity for them? Why do you feel sorry for the criminals and not the victims? All I see, consistently, is disdain and callousness for the victims. Even after all of the criminals’ constitutional rights have been respected. I still don’t get it.

  16. 1. “Yes, the English solicitor referred to three cases, but the main point was the general treatment of dying felons, and not just those specific cases. ”

    I think the point was referring to non-violent offenders.

    2. “Even if you don’t believe in God, remember that the money that he stole at least partially came from the contributions of his flock, many of whom I am sure could barely afford what they gave to the church. This is the person you are defending?”

    Yes, I am defending this dead man now. Everyone has a right to a solid defense. This guy stole. Absolutely. But he did not kill. I seem to be incapable of impressing the importance of proportionality on you, even though it is already there in the statute. A defendant who steals X, or an individual who becomes a felon, does not mean, he becomes indefensible and that it is open season on him/her.

    3. “And sorry, but you are wrong about the victims’ rights to “vengeance.” Federal law (and the law in most states) allows victims to present victim impact statements to the judge, which the judge is allowed to consider when imposing sentence. So yes, crime victims have the right to be heard, and the right to influence the criminal’s punishment.”

    Victim impact statements are not “vengeance.” They are a part of the implicit “restorative justice” component of criminal sentencing. Crime victims absolutely have a right to be heard and they do rightly influence the criminal’s punishment. But you are conflating and collapsing two separate issues: the right to be heard and the right to vengeance. There is no state or federal statute that gives any victim the right to vengeance. Retribution is often mentioned, but retribution without proportionality, is not retribution.

    4. “I am sorry, but the law is not what you wish it to be. You keep mentioning 3553(a). In fact, one of the sentencing factors is “to provide just punishment for the offense.” You believe that if someone is dying then jail time is not just punishment. The law and the judges that apply it disagree. You think it’s unjust; you think it’s disgusting. So what? You don’t get to make the laws. I am sure that most people would think that letting those criminals off so they can die in peace is disgusting. At least our elected representatives and our judges think so.”

    One word: proportionality. Repeat it. You think some one dying in prison for a money crime is proportional punishment? How about if they stole a snickers bar?

    The judge’s who “applied” this (as to the defendants who died) were never heard on appeal. The one case that was heard on appeal, the concurring opinion tore into the District Judge and 3553(a) in general. I suggest you click on it and have a read.

    5. “Another factor of 3553(a) is ” to reflect the seriousness of the offense.” This also reflects the impact on the victim. Also, ” to promote respect for the law” and “to afford adequate deterrence to criminal conduct”, All those weigh in favor of prison sentences. Studies have shown that the deterrent effect of prison is most prevalent in white collar crimes. Certainly, seeing someone die in prison for a financial crime is a deterrent.

    Actually, research has shown the opposite to be true. It is not the quantity of the punishment but rather the certainty of punishment that deters white collar offenders. There is more than abundant research, all available on Lexis/Westlaw that mention this point. In fact, one of the areas in criminal sentencing in federal court where departures occur most frequently is in white-collar sentencing. If you don’t like articles but sociologists, there are plenty of other articles online too but sitting judges including Judge Rakoff (SDNY). If you think he is a liberl and don’t like him, just log on Westlaw/Lexis and you’ll find many others who argue the same point.

    6. What about the victim’s?

    The victims? Really? You think a felony conviction, the right to address the court with victim impact statements, possible probation after any future release, and a restitution order are not enough? I am sorry, that is all that they are entitled too.

    According to you, what victims really need is to have defendants sentenced to die in prison for non-violent money crimes just because they are felons and have lost their rights. As implied in the original post, “we have judges sentence offenders for a reason.” A judge shouldn’t be the tool of anyone. You don’t need to be judge hercules. Being an umpire and being fair is enough.

  17. In 1.0 RGK tells us what he has done to decide if the BOP can provide adequate care during the prisoners terminal illness an important side issue in my opinion. I do not know what other federal judges do. I have not done much research on the level of terminal care in US prisons but a reasonable supposition is that it has a wide range with the BOP near the top end.

  18. I don’t think that repeating the word “proportionality” over and over again is a valid argument. The logical fallacy here is that you define “proportionality” based on your own beliefs, and then apply it as if it were an absolute truth. The fact that YOU believe that the punishment is not proportional and not fair does not make it the truth. It is merely YOUR personal belief. Many others disagree with you, including the judges that passed sentence. And to make it clear, I am not talking about “crimes” like drug possession or sales. I am talking about predatory crimes that destroy people’s lives.

    You also mischaracterize the punishment. You call it “sentenced to die in prison” and for “non-violent money crimes.” The first statement is plain false. The second statement minimizes the tremendous damage those criminals caused.

    First, no one was sentenced to die in prison. The statutes provide for sentencing for a certain period of time. If the prescribed punishment is ten years, then the sentence is ten years. Like I said, we are all going to die at some point. If the criminal dies during his sentence, that has nothing to do with the sentence. Dying in prison is a risk that criminals assume. Would you advocate letting Madoff out because he will die in prison for a non-violent money crime? Do 90-year olds have free reign to commit financial crimes because if they are imprisoned they will die in prison? Like I said, if you don’t want to die in prison, DON’T DO THE CRIME! We are not talking about stealing a candy bar here. We are talking about people that steal millions and destroy lives so they can live in luxury.

    Second, as far as your dismissal of the seriousness of financial crimes, you have completely ignored my statements about the impact on the victims. Several people have committed suicide as a result of the Madoff Ponzi scheme. People have died because of it. And many people’s lives have been ruined after they lost their life savings. Nothing non-violent about that! Trivializing those crimes is, to use your word, disgusting.

  19. 1. I have not defined proportionality according to my belief. There are legal systems in the world, such as in England, that do apply this principle. In fact, it is in the US sentencing statute. It just has no teeth in practice.

    2. You state:

    “Many others disagree with you, including the judges that passed sentence. And to make it clear, I am not talking about “crimes” like drug possession or sales. I am talking about predatory crimes that destroy people’s lives.”

    The judge’s who passed those sentences did so because the cases were never going to go up to appeal and be subject to review. The one case where it did go to appeal and was reviewed, United States v. Juncal, the concurring panel member did question the wisdom of such sentences. You can access the opinion here:

    http://sentencing.typepad.com/sentencing_law_and_policy/2013/07/second-circuit-finds-stat-max-white-collar-sentences-procedurally-unreasonable.html

    I have noticed you have passed over it without ever mentioning it.

    3. Really?

    You also mischaracterize the punishment. You call it “sentenced to die in prison” and for “non-violent money crimes.” The first statement is plain false. The second statement minimizes the tremendous damage those criminals caused.

    Yes, they cause tremendous damage. But two wrongs don’t make a right. If you honestly believe that sentencing a dying defendant to a prison term serves the goals in 3553(a), then you dont know what those goals are. Retribution? You steal my money, now you die in prison? That is retribution? Again, retribution is only retribution (if you look up the academic perspective on it) if it is proportional. Deterrence? Dying prisoners who don’t get to serve the sentence imposed on them don’t really deter others. They die and they are quickly out of the news. There is not much deterrence value to that. And, as I have previously posted, in white collar crimes the research shows that it is the certainty and the not quantity of punishment when it comes to deterrence. Rehabilitation? You are not going to rehabilitate a dying man and, in any event, there are provisions of the sentencing statute that say rehabilitation should not be the focus of imprisonment. Restitution? Well, unless prison salaries are quite high, I doubt dying men will earn enough to fulfill the goals of restitution from behind bars.

    4. So if we are all going to die at some point, its okay?

    First, no one was sentenced to die in prison. The statutes provide for sentencing for a certain period of time. If the prescribed punishment is ten years, then the sentence is ten years. Like I said, we are all going to die at some point. If the criminal dies during his sentence, that has nothing to do with the sentence.

    5. Second, as far as your dismissal of the seriousness of financial crimes, you have completely ignored my statements about the impact on the victims. Several people have committed suicide as a result of the Madoff Ponzi scheme. People have died because of it.

    Yea, one of those who committed suicide was Maddoff’s son (uncharged).

    Let me ask you this: do you think federal system’s approach to white collar crime is working? How about relative to other countries, such as, say England & Wales?

    And what is your benchmark for measuring success? If it is recidivism, deterrence or restitution, the federal system in the US fails all three.

    Regulation to prevent fraud is better than after-the-fact punishment. Most corporate criminals are not aware of the severe sanctions and by the time they do become aware of it, it is of little consequence. It is too late. They just become a statistic. Everyone loses.

    As for Maddoff, if he had committed his crime in Europe, he would have gotten a decade sentence and would have been eligible for parole. That would have been it. And more than likely had he been based in Europe, he would not have been able to carry on for so long. The level of regulation in intense.

    As to the Judge’s position in 1.0, which JSNEFF has pointed out: that’s fair. It looks at the individual circumstances in each case. Its neither victim heavy or falling over for the defendant. You might want to read the 8th Circuit decision from last August (2014) affirming a district court sentence of probation where her sentencing guidelines called for more than a decade in prison.

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