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April 10, 2006

An example of gender disparity in sentencing?

The Eighth Circuit's ruling in US vs. Bistrup, No. 05-2603 (8th Cir. Apr. 10, 2006) (available here), caught my attention principally because I am discussing offender characteristics in my sentencing class this afternoon. In Bistrup, a husband and wife were convicted at trial of a series of mail fraud and bank fraud offenses. Based on the facts recounted by the Eighth Circuit, the husband was clearly far more involved in the fraud scheme than the wife.  Nevertheless, the disparity between the sentences imposed is startling: "The district court sentenced Nancy Bistrup to ... two years of probation for her role in the offenses [and] sentenced Alan Bistrup to 188 months after calculating a guideline range of 151 to 188 months based on a total offense level of 34 and category I criminal history."

Notably, the Eighth Circuit does not report the guideline sentencing calculations in Nancy's case, but I suspect that the district judge had to depart or vary downward in order to impose a sentence of only two years' probation.  Meanwhile, Alan received the guideline max and will be spending over 15 years in the federal pen (perhaps a little less with good behavior).  I cannot help but speculate that, had their roles been reversed, the sentences for Alan and Nancy Bistrup might have been more comparable.

UPDATE:  The second comment here provides more details on the different levels of involvement of Alan and Nancy Bistrup to explain why factors other than gender may explain the disparity in their sentences.  That comment spotlights a number of important points, although I still find telling the fact that Nancy's  "guideline range of 37-46 months" and yet she ultimately received a sentence of only two years' probation, while Alan was sentenced at the very top of his applicable guideline guideline range.

April 10, 2006 at 01:53 PM | Permalink

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Comments

On March 17, 2005 in “New (depressing) report on women and increased incarceration”,
Prof. Berman recognized the severe punishment for women convicted of drug crimes "Caught in the Net: the Impact of Drug Policies on Women & Families”. Mrs. Bistrup’s involvement was much more prolific than most women sentenced to prison along with their husbands or boyfriends in drug cases. But the evil deed of the Bistrups was stealing someone’s money, their life savings or retirement fund, it doesn’t matter, they committed a fraud. If the Bistrups had gotten caught taking 3 million dollars for the sale of illegal drugs, would the Missus have walked away with probation???? Are the people who lost money less injured by the Bistrup’s crimes than the family whose father used the savings or retirement money for his drug addiction or the family who spent their savings on drug rehabilitation for a son or daughter? It is hard to put a number on the injury and therefore the proportionate punishment which would be “reasonable”, but to those people who lost their money is probation “reasonable”…. I wonder how reasonable probation would have been if the judges of the 8th Circuit had lost their savings. All guideline punishment is too severe, in that there is no chance for victim compensation, when the criminal who must pay will be gone for 15 years and his chances for recompensing the investors, after 15 years in prison will diminish logarithmically. But maybe Mrs. Bistrup can be paying the victims while on probation.

Posted by: Barry Ward | Apr 10, 2006 3:17:02 PM

I don't think this is so clear-cut a case of gender disparity.

Looking at the lower court documents, Ms. Bistrup's role was uncontestedly less than her husband's. The government conceded in its sentencing memorandum that "Ms. Bistrup should receive a mitigating role reduction, resulting in an adjusted offense level of 21, resulting in a guideline range of 37-46 months." (D. Minn. Case No. 03-cr-0386, Docket No. 112, at 4.) The government further noted that a downward departure under U.S.S.G. 5K2.0 might be warranted, because the risk of loss was small on the secured residential mortgages that the Bistrups fraudulently signed. Ms. Bistrup had been convicted of two counts of mail fraud, two of bank fraud, and two of false statements on loan applications; if the defense sentencing memo is to be believed, her main criminal act was to sign on to four mortgages held with her husband on their joint residence. (Docket No. 116.) Notably, she was not asked to pay any restitution at all, and the government argued that she was responsible for at most a joint share of about $1 million in fraudulent mortgages, whereas her husband was ordered to pay nearly $3 million in restitution. (Compare Docket No. 120 (Alan Bistrup Criminal Judgment) with Docket No. 121 (Nancy Bistrup Criminal Judgment); see also Docket No. 112 (Gov't Sentencing Memo as to Nancy Bistrup).)

Alan Bistrup, in contrast, was convicted (by jury trial) of an additional 15 additional counts of securities fraud, four of wire fraud, and nine of money laundering. He was, by all accounts, the main engineer of a fraud that extended well beyond what his wife was involved with, and the sentence that the government recommended in his case was much higher (level 38, 235-293 months). (Docket No. 113, at 7.) Also in contrast to Nancy, the government recommended a sentence within the guideline range "in light of the devastation Mr. Bistrup caused to the victims of his extensive fraud scheme." (Id.) The sentence imposed on him was lighter than the government advocated--188 months--but so was Nancy's, by an amount that seems roughly proportionate.

It may well be that the prosecutors, the jury, and the judge were all convinced that Nancy's role was minor by means of defense arguments that would not have been as effective if the gender roles were reversed. It's possible that some of the people involved believed that a woman might ignorantly sign on a dotted line provided by her husband, but a man wouldn't be as likely to do the same if the situation were the opposite. But there's little basis for making such a conclusion, and plenty of reason to believe that the Bistrups just weren't similarly situated, despite being spouses and co-defendants.

Posted by: David Krinsky | Apr 10, 2006 10:09:02 PM

Prof. Berman--

Thanks for the front-page link. I want to clarify one point, though: Nancy Bistrup's "guideline range of 37-46 months" was what the government had advocated as a guideline range, not the guideline range the court found (or that the probation officer recommended). I have no idea (and can't find in the record documents in PACER) what the actual guideline range was.

Given the dramatic effects of the amount-of-loss Specific Offense Characteristics in U.S.S.G. 2B1.1(b)(1), the very light sentence may well have been a result of a difference in losses attributable to Ms. Bistrup rather than a big departure/variance downwards. I just don't know.

Posted by: David Krinsky | Apr 11, 2006 2:29:06 PM

I know the Bistrups personally. What I don't understand is why Al is put behind bars costing us tax payers money! He's totally harmless; thus he belongs out working somewhere flipping burgers, selling cars (like he used to), or something constructional.
He should be on work release paying back my other friends the money that he owes to them. They certainly are not getting their money back with him sitting in jail! Instead he's costing them more money because they have to pay taxes to pay for his meals, jail cell etc . . .

Posted by: A Friend of Bistrups | Jul 20, 2006 10:48:29 PM

Can anyone tell me where Mr. Bistrup is currently incarcerated? If someone wanted to send a letter or call?

I am a friend of a friend.

Thanks!

Posted by: Inquiry | Aug 30, 2006 10:40:31 AM

Please let me know if this is still active.

I was a victim that knew the Bistrups very
well for over 20 years....Al was in my wedding,
I lost nearly $200,000

I testified in front of the Grand Jury, and for
3 hours during the trial.

I can add some insight if you are still interested

Posted by: mike | Jan 28, 2007 2:22:53 AM

Hint: Research the investors involved in this case and look for a "interesting" campaign contribution made during the 90's, this might help you to understand why the book was thrown at Mr. Bistrup ;)

JB
Student

Posted by: JB | Apr 2, 2010 10:24:09 AM

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