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February 23, 2009

Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)

I have not blogged at all about the ugly allegations against federal judge Samuel Kent, but this latest news about his case from Mary Flood at the Houston Chronicle means that Judge Kent may soon to become my new post-Booker federal sentencing poster-child.  Here are the basics:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.  Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges. “Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing.  “A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.

Kent faces up to 20 years in prison on the obstruction charge.  Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.

Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media. The two female court employees with whom Kent now admits he had non-consensual sexual contact also were barred from speaking by Vinson’s order. Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order....

Although, in most pleas in the federal courthouse in Houston, defendants are made to state their crimes, neither Kent nor prosecutor Peter Ainsworth stated the crimes in court.  Instead, papers were filed stating that Kent had non-consensual sex with two former female employees between 2003 and 2007.  The papers also state that, as part of the investigation into a complaint by one of the women, Kent lied about his relationship with the second woman to the Special Investigative Committee of the 5th Circuit.  Kent signed those papers admitting his wrongdoing....

Kent’s sentencing [is] set [for] May [and a lawyer for one victim] said he expects the victims will have a chance to speak then. Federal law requires judges to consider the victims’ input in sentencing.

So, let's review the offense and plea basics: a federal judge has admitted to "non-consensual sex" with two federal employees and he gets to cop a plea to one obstruction count and gets a sentence recommendation from prosecutors of only three-years imprisonment.  This seems like a pretty sweet deal, especially given that hundreds of federal defendants are now serving much long prison terms for just downloading the wrong kinds of dirty pictures on their computers. 

These issues really concern me in light of the (peculiar) gag order on Judge Kent's real victims.  I wonder if the victims of his "non-consensual sex" — which is sometimes called rape where I come from — were consulted (as the Crime Victims' Rights Act arguably requires) before federal prosecutors made this sweet deal.  I also wonder if they might now urge state prosecutors to go after Judge Kent for state crimes now that he has secured such a sweet deal from the feds. 

Now, let's spot some sentencing issues:

  • should Judge Kent's guideline calculations be focused on his admitted "non-consensual sex" as relevant conduct?
  • should Judge Kent get any credit (under the guidelines or otherwise) for his (late-in-the-day) acceptance of responsibility?
  • should Judge Kent have to register as a sex offender?
  • should Judge Kent's prior government and status be a mitigating or an aggravating sentencing factor in light of the provisions of 3553(a)?
  • should all the collateral consequences of his conviction (including the likely loss of his federal pension) be a mitigating sentencing factor in light of the provisions of 3553(a)?
  • is the gag order on the victims consistent with the federal Crime Victims Rights Act?

I could go on and on, but it looks like we will have at least a few months to work through these issues.  (The CVRA issues, however, strikes me as one that might merit consideration (and litigation?) sooner rather than later.)

February 23, 2009 at 02:57 PM | Permalink

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Comments

I hope he gets maxed out.

Posted by: federalist | Feb 23, 2009 3:08:03 PM

For someone so interested in shaming as a punishment, I'm surprised that you haven't commented on the significant humiliation that Kent apparently was allowed to avoid: the admission in open court of the facts supporting the plea.

Posted by: anon | Feb 23, 2009 3:22:58 PM

Excellent precedent for my clients not having to appear in court on a felony charge to publically admit guilt. We can just do it in writing. If a federal judge doesn't have to, why should anyone else.

Posted by: Michael R. Levine | Feb 23, 2009 5:19:36 PM

I agree, anon, that this case cries out for a significant shaming sentence --- though I hardly consider just the usual requirement of just admitting to the crime itself serves as a shaming sanction; that should be just a necessary condition of pleading guilty. Forcing the judge to lecture/teaching courses on sexual harassment (from prison and for the rest of his life) might be a fitting shaming sanction in this setting. So, too, might be all sorts of other indignities that less prominent sex offenders faces.

Posted by: Doug B. | Feb 24, 2009 12:07:37 PM

I'd like to know from the public defenders in Judge Vinson's district whether he is a slave to the guidelines or exercises some of his Booker discretion. The answer could be important for Mr. (no longer judge) Kent.

Posted by: D | Feb 25, 2009 8:58:19 AM

Sex offender registry is a must. I have heard of cases in which there was no sexual component and the offender had to register. He admitted to unconsensual groping of breasts and genitals under clothing that occurred over several years. There are many RSOs who have committed consensual sexual activities and even nonviolent/noncontact offenses and must register. This two-tiered, priviledged, well connected system is a disgrace. There are hundreds of thousands of Americans and their family's who are suffering homelessness, joblessness, marginalization and harrassment due to the registry. RSOs are declared as not human, justifying a steady elimination of rights warranted for the "protection" of children.
If the system allows one of their own to be ensnared in this registration nightmare, the exJudge will surely make a concerted effort to break free from the requirement obligations and in a way create a doorway for the RSOs to be relieved also. The fraud of REGISTERED sex offender policies will be exposed. There are much more implications here that the presiding Judge and the prosecutors are trying to minimize and avoid. Why an unprecedented gag order, neither requested by any side, or sealing information from the public. I thought the legitimacy of the registry was publicizing public info.

Posted by: Joseph | Mar 6, 2009 6:22:11 PM

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