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June 15, 2009

Judge Samuel Kent finally heading to prison today

Thanks to this post at How Appealing, evenyone can catch up on all the latest news about Judge (and convicted felon) Samuel Kent, who is due to report to prison today.  This recent article by Mary Flood in the Houston Chronicle provides a glimpse into Kent's immediate future:

Disgraced federal judge Samuel Kent is scheduled to report Monday to a Massa­chusetts prison that specializes in care for felons with medical or mental health problems. He’ll join a mobster who recently appeared in court by video from a prison wheelchair, a number of child pornographers, embezzlers and drug abusers, among the 1,300 or so others.

Kent is scheduled to turn himself in to the Devens Federal Medical Center in Ayer, Mass., about 40 miles west of Boston. He’s due by 2 p.m. Monday, a week shy of his 60th birthday. The judge, who is also facing a fast-tracked impeachment by the U.S. Congress, pleaded guilty to obstructing justice by lying to a judicial panel about his repeated sexual molestation of two former female employees. Kent admitted his assaults and was sentenced to 33 months in federal prison.

Devens features a camp, which offers some sense of freedom, and a hospital built in the former military hospital in the decommissioned Fort Devens. The spot is likely most famous for being ground zero during the influenza pandemic of 1918. “As a practical matter Devens has low security people,” said Alan Ellis, a San Francisco-based lawyer who wrote the Federal Prison Guidebook. “If he needed a hospital and he were a greater risk, he’d be in Springfield, where John Gotti was at the end of his sentence.”

Devens prisoners who have made headlines in the last few years include pornographers, money-launderers, thieves and quite a few minor public officials or civic leaders sentenced for a variety of white-collar offenses.

Related posts on the Kent proceedings:

June 15, 2009 at 09:06 AM | Permalink

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Comments

A hardliner like me welcomes the imprisonment of this character -- who, in addition to being a convicted felon, is a bully, a pervert and a liar.

But that's just me. I wonder what we'll be hearing from those who spend so much time being preoccupied with "incarceration nation" and bemoaning the (supposedly) unaffordable costs of imprisonment.

Sending Judge Kent to the slammer, along with thousands of other relatively less menacing miscreants, will only add to our already disgracefully bulging prison population and its enormous costs. It will gobble up money we could use for education, health care, the environement, research and the Jeremiah Wright Appreciation Fund (oooops, sorry, cancel that last one, I got carried away).

Where is our sense of modesty and enlightenment? Do we really want to be in league with callous, lock-'em-up regimes like China, North Korea and Iran?

Where is our compassion? Kent is getting old. His wife had a terrible disease. Is this how a caring and progressive society behaves?

Where is our belief in redemption? Just because he's been an oaf for years doesn't mean he can't find God!!! So many people do, ya know -- at least in time for the PSI.

Where is our recognition that forces external to the defendant are really to blame? Have we forgotten how easy and unworthy it is just to be punitive? How much science has taught us about how people are shaped by their environment, and all this stuff about free will and making criminal choices is just some medieval myth?

We can't just throw people away. We can't just lock them in cages and avert our eyes. We know this because it is the Received Wisdom, heard again and again right here on this forum.

Now I understand that the Received Wisdom might be subject to cancellation without notice when the defendant is, as here, a politically maladroit white male Southerner, and thus undesrving of the gooey "understanding" routinely heaped on other crooks. Still, I can at least hope that such rank discrimination will find no place with our liberal contingent.

I guess I'll find out soon enough.

Posted by: Bill Otis | Jun 15, 2009 10:39:14 AM

Though you always seem so eager to poke at the left, Bill, I am much more troubled in this case that you are not complaining (as I have) that a rapist like Judge Kent got such a lenient sentence (and likely won't have to register as a sex offender). The "gooey 'understanding'" that is in fact NOT routinely heaped on other crooks has already benefited the likes of Judge Kent or he would have been looking at spending the rest of his life behind bars instead of planning to be out in just a couple of years.

As you should know, much of the hand-wringing about our "callous, lock-'em-up" regime concerns drug offenders and other non-violent folks (like your pal Scooter Libby, whom you convinced Prez Bush to keep out of prison based on you "gooey" advocacy on behalf of a "convicted felon ... and a liar.")

To my knowledge, few urge extreme leniency for powerful sex offenders like Judge Kent. But, troublesomesly, the federal prosecutors in this case were willing to cut a much-too-sweet plea deal (and the federal judge went along) apparently because leniency/empathy for powerful men never seems to raise ire among the "tough-on-crime" crowd as much as leniency/empathy for the truly downtrodden.

Can you explain, Bill, why you and O'Reilly and others who often complain about sentences that are too lenient have not yet spoken up about the many breaks that Judge Kent has already received?

Posted by: Doug B. | Jun 15, 2009 10:57:11 AM

Bill, close, but no cigar. What is really going on? I'd say the new media leads this charge.

Oh-oh! Politicians share personality traits with serial killers: Study

Using his law enforcement experience and data drawn from the FBI's Behavioral Analysis Unit, Jim Kouri has collected a series of personality traits common to a couple of professions.

Kouri, who's a vice president of the National Association of Chiefs of Police, has assembled traits such as superficial charm, an exaggerated sense of self-worth, glibness, lying, lack of remorse and manipulation of others.

These traits, Kouri points out in his analysis, are common to psychopathic serial killers.

But -- and here's the part that may spark some controversy and defensive discussion -- these traits are also common to American politicians. (Maybe you already suspected.)

Posted by: George | Jun 15, 2009 11:29:19 AM


Doug --

"Though you always seem so eager to poke at the left, Bill..."

Somebody's gotta do it, Doug. The comment section of this blog is dominated by liberals. There's nothing wrong with that, but it doesn't leave many of us to do the poking at liberal positions.

"I am much more troubled in this case that you are not complaining (as I have) that a rapist like Judge Kent got such a lenient sentence (and likely won't have to register as a sex offender). The "gooey 'understanding'" that is in fact NOT routinely heaped on other crooks..."

YOU aren't into all the goo, I quite agree. But some of your commenters have never (or seldom) seen a criminal whose behavior couldn't be excused or at least "understood" (which is code for excused). The notion, which appears here all the time, that "it's-all-poverty-or-brain-injury-or-something," is goo if I ever saw it. It's also false, and is "backed up" mostly by a combination of righteous indignation and junk science.

As for Kent's sentence, all hope was lost when Booker, Gall, Kimbrough and the rest of them effectively gave judges the green light to do anything they want. As you know, I was against that and fought it vigorously. But I lost, so now we have the anything-goes regimen. I wish we weren't stuck with it, but we are. It wasn't my idea, believe me.


"...has already benefited the likes of Judge Kent or he would have been looking at spending the rest of his life behind bars instead of planning to be out in just a couple of years."

I don't know what his Guidelines calculation was. If you say it was life (or effectively life), I'll take your word for it, although a sentence like that would surprise me. But the point remains that in our post-Booker luck-of-the-draw world, it makes no difference. The chances of getting Kent's sentence overturned are effectively zero.


"As you should know, much of the hand-wringing about our "callous, lock-'em-up" regime concerns drug offenders and other non-violent folks (like your pal Scooter Libby..."

I have never met Mr. Libby nor exchanged a single word with him or his lawyers. I did see him at the Bradley Awards ceremony at the Kennedy Center about two weeks ago, however. That's as close as I've ever been to him. I have no personal animus toward him, that's quite true.

"..whom you convinced Prez Bush to keep out of prison based on you "gooey" advocacy on behalf of a "convicted felon ... and a liar.")

Ha! I didn't have that kind of clout at the White House even when I worked there, and that was for Bush's FATHER twelve years ago.

I agree (of course) that Libby was a convicted felon, and I have no serious basis to dispute the jury's verdict that he lied. But he is not, so far as I know, a bully or a pervert, which puts him way ahead of Kent, and also means that the chances that he could or would re-offend are remote.

"To my knowledge, few urge extreme leniency for powerful sex offenders like Judge Kent."

But that's not because their theory of punishment, as expressed repeatedly here and elsewhere, has changed from a visceral (as opposed to analytic) preference for leniency for exactly the reasons stated in my comment this morning. It's because there are, thank goodness, very few federal judges who are sex offenders.

"But, troublesomesly, the federal prosecutors in this case were willing to cut a much-too-sweet plea deal (and the federal judge went along) apparently because leniency/empathy for powerful men never seems to raise ire among the "tough-on-crime" crowd as much as leniency/empathy for the truly downtrodden."

I do not regard murderers, muggers, thieves, strong-arms, drug pushers, et al. as "downtrodden." I regard them as, for the most part, malevolent and dangerous. Your use of "downtrodden" to describe these people says a great deal about where and why you and I disagree about the theory of sentencing. I regard these frequently violent and even more frequently rapacious people as having made a choice to turn their VICTIMS into the truly downtrodden.


"Can you explain, Bill, why you and O'Reilly and others who often complain about sentences that are too lenient have not yet spoken up about the many breaks that Judge Kent has already received?"

When I get my own TV show like Bill has, I'll be in a better position to make public complaints about sentencing and anything else. I don't know whether the O'Reilly Factor has complained about Kent's sentencing, to tell you the truth. I don't watch it that much. (I'm too busy drowning kittens).

As I mentioned, I don't know what the Guidelines -- if they counted for anything more than window dressing anymore -- would have produced for Kent's sentencing. Without that key piece of information, I would be uninformed (to use a polite word) in making any definitive comment on how harsh a sentence Kent should have received.

But I can tell you one thing for sure. In the days of mandatory guidelines and genuine appellate enforcement, and when I was in charge of appeals for the USAO for the EDVA, if Kent got so much as a whiff of unjustified preferential treatment at sentencing, I would have filed the notice of appeal that day.


Posted by: Bill Otis | Jun 15, 2009 1:00:08 PM

Doug --

Correction. I worked at the WH most recently 17 years ago, not 12.

I must be getting old, but don't remind me/

Posted by: Bill Otis | Jun 15, 2009 1:20:06 PM

Gentlemen & Ladies: What is curious to me is why Judge Kent is being incarcer- ated so far from home, when there are other, equivalent, B.O.P. Medical facilities closer to Galveston, Texas than Massachusetts. The B.O.P. generally tries (or so their regulations say) to house inmates within 500 miles of home, to facilitate visits by family and friends. There used to be a Medical facility in Dallas, where former four term Louisiana Gov. Edwin Edwards was being held and receiving medical treatment. Other B.O.P. Medical facilities are located in Butner, North Carolina (where the B.O.P.'s Sexual Offender Treatment Program is also housed in a Unit at the F.C.I.) and Lexington, Ky. (F.M.C. - Lexington), where there is even a hospice unit for terminally ill inmates. Of course, trying to figure out why the B.O.P. does anything has always been like divining the future by examining goat entrails or reading tea leaves. A B.O.P. Medical Facility is the easiest place to serve Federal time, since very sick inmates there are not held to the same rigid standards as are inmates in regular prisons. The downside is that medical facilities are administrative facilities, where one may encounter inmates from all different security classifications, including violent penitentiary inmates serving life sentences. I once had a cell mate at U.S. Penitentiary - 1, Coleman, Florida, who was a paraplegic crack dealer. He had stabbed someone 6 times from a wheel chair while at a B.O.P. Medical Facility (in Rochester, Minnesota), including once in the face, because he thought his victim had spoken disrespectfully to him. Judge Kent would do well to hang out in the library or the chapel, which are generally the safest places in any prison, and where he will encounter other better educated inamtes, most like him. He will probably even encounter former lawyer/inmates, with whom he can chew the legal fat. Because of his alcoholism, Judge Kent may get to participate in the B.O.P.'s 500 hour drug program. If he successfully completes that program, up to 1 year could be taken off his 33 month sentence.

Posted by: Jim Gormley | Jun 15, 2009 2:17:43 PM

Bill, as is true in most cases of extreme leniency, PROSECUTORS --- not judges or Booker --- accounts for the sweet deal Kent got. He only had to plead guilty to obstruction, even though he essentially admitted guilt on other crimes. The prosecutors agreed not to seek a sentence longer than 36 months, which they could do because they agreed to the sweet-lesser-offense plea.

If you are going to pick on folks, select the right targets. In this case --- as in many cases --- the REAL source of undue leniency (and often the source of undue harshness as in Libby's case or undue disaprity as in other cases) is the application of discretion by unregulated prosecutors. Even in madatory sentencing systems, prosecutors get to decide which kind of "goo" to consider, and they know that you and/or O'Reilly or anyone else in positions of power are unlikely to give them grief for cutting breaks to Kent or Spitzer or others in positions of power.

Also, if Booker is so bad, why have our elected representatives been content to leave Booker in place for nearly 5 years? Maybe the system is thought by all the different persons in power to be working better than what came before.

Finally, it seems that more than a few of the most frequent commentors --- you, federalist, Supremecy Claus and a few others --- look at life from the right side of the ailse. Indeed, that one reason I love keeping comments open --- I see a more balanced dialogue here than in most other criminal justice fora.

Posted by: Doug B. | Jun 15, 2009 4:39:14 PM


Doug --

Prosecutors make charging decisions because charging is an executive branch function. (Who would you prefer to make them? Defense counsel?). That was true before the Guidelines and it will be true for as long as Article II remains intact. That the prosecutors in the Kent case agreed not to SEEK a sentence of more than 36 months in no way obligated the judge to IMPOSE no more than that. He could have, but chose not to. Indeed, he didn't even give the 36 months. This tells you how much use it would have been for the prosecution to seek more.

With that said, I agree that the prosecutors probably went too light on this guy. I also believe that DOJ went too light on another and far worse high profile defendant, Harvard graduate Ted Kaczynski. Kaczynski was a multiple murderer who, over a period of many years, sent disguised nail bombs to his victims. DOJ decided not to seek the death penalty in a case where the defendant's cold-blooded planning and sadistic, lying-in-wait style of killing plainly called for it.

I agree with DOJ decisions more often than most of your commenters, but I don't agree with all of them, as few if any would. Nothing remarkable about that.

"If you are going to pick on folks, select the right targets. In this case --- as in many cases --- the REAL source of undue leniency (and often the source of undue harshness as in Libby's case or undue disaprity as in other cases) is the application of discretion by unregulated prosecutors."

First, as noted, you and I just disagree on who bears the ultimate responsibility for sentencing. To me, this is easy: It's the person who imposes the sentence. Yes, it's true that the sentence can be circumscribed by the charging decision (reflected 90% of the time in the plea bargain), but the judge can reject the plea bargain. He can also go way off the reservation, as the post you put up today about the Eleventh Circuit decision illustrates.

Second, prosecutors are not "unregulated." There is accountability up and down the line, in the USAO and in Main Justice. Of course, the ultimate accountability with prosecutors, as with all executive branch personnel, lies with the voters. Last November, we saw some big-time "regulation" of prosecutors, namely, that everyone at the top got the axe. Would that it were equally easy to give the axe to the Judge Kent's of the world.

Third, some degree of discretion is both desirable and unavoidable in executive branch officers, including prosecutors. What's the alternative?

"Even in madatory sentencing systems, prosecutors get to decide which kind of 'goo' to consider.."

My guess is that you've got a pretty good idea of how "gooey" I was as an AUSA. I believe I was respected, but I never retired the Mr. Nicey Award. The more important point, however, is that there IS goo in some of these "arguments" for leniency. Indeed, "goo" is a euphemism for the notion, seen occasionally in the comments section here, that it's not the criminal's fault, but only the fault of......you name it. Parents, day care, the system, capitalism, not enough Head Start, too much Head Start, brain lesions, booze, a bad hair day, twinkies.......anything you can think of. Nobody's a thug. Everybody's A Victim of the System.

Yikes.

I'm sorry. That's not analysis. That's goo.

"...and they know that you and/or O'Reilly or anyone else in positions of power are unlikely to give them grief for cutting breaks to Kent or Spitzer or others in positions of power."

I don't take in that much of O'Reilly, but from what little I know of him, my guess is that he'd be all over Kent and Spitzer if he were paying attention.

"Also, if Booker is so bad, why have our elected representatives been content to leave Booker in place for nearly 5 years?"

Because the constituency favoring it is more powerful and determined than the constituency opposed. Also because the main driving force in Washington is inertia. Also because both parties have internal divisions on the question. And because people are understandably preoccupied with other things, like jihadist terrorism and the growing trillions in national debt.

"Maybe the system is thought by all the different persons in power to be working better than what came before."

My reasons for thinking it's not working better, and is in fact a freakish, lawless disaster, were set forth in my article in the FSR that you and Frank Bowman were generous enough to publish. They are also set forth in my article in the law journal "Engage," which can be found here: http://www.fed-soc.org/doclib/20080703_Otis.Engage.9.2.pdf. Finally, anyone who's looking for the quick and dirty version of why "voluntary" Guidelines are dreadful can read Justice Stevens's dissent from the remedial portion of Booker.

"Finally, it seems that more than a few of the most frequent commentors --- you, federalist, Supremecy Claus and a few others --- look at life from the right side of the ailse. Indeed, that one reason I love keeping comments open --- I see a more balanced dialogue here than in most other criminal justice fora."

Federalist doesn't seem to me to be all that frequent a commenter at this point. I have trouble understanding S.C., and I'm afraid I'd make his bad list in any event, since I'm a lawyer. Still, you are spot on in your principal point here. You do indeed welcome comments from those in the conservative minority, and for that I am grateful to you.

Posted by: Bill Otis | Jun 15, 2009 6:41:40 PM

I enjoy reading your comments Bill. I hope you continue. Our views are pretty much opposed to one another, but it proves to me that reasonable intelligent people can disagree. Healthy skepticism and discourse are good, no matter who is in the white house.

Posted by: babalu2u | Jun 15, 2009 11:55:05 PM

babalu2u -- Thanks. I can be long winded, as you see, but I enjoy tossing it around with Doug. I appreciate your kind words.

Great moniker, incidentally.

Posted by: Bill Otis | Jun 16, 2009 4:48:34 AM

I have never really heard the precise nature of the crimes, conduct, wrongs, acts for which Kent was not charged. I have heard (above) that his crime charged was for lying about it. I favor an approach derived from Jones v. United States. If he was not charged with "molestation", "rape" (one commentator says), "sexual assault", then he should not be sentenced for that conduct. Maybe the uncharged crimes could not be proven.

Scooter Libby lied about exposing one person as a CIA agent and thus exposing that person and many she spoke to in the middle east to torture and death. The crime not charged was worse than Kent's crime not charged.

In both cases -- lying about an uncharged crime--should leniency come into play for fessing up, for co-operating, or for pleading guilty? I think not. Scooter did not snitch on Cheny. Should he get more or less time for that? Preppy name like "Scooter", more or less time for that? In this case, all things considered, he got less time for being a preppie. Now his moniker should be "Scooter Fall Guy" Libby.

I make these comments to point out that much of our attitude is shaped by class distinction. People that do not belong to country clubs think that Scooter and Kent went to one--instead of being sent to prison. People that do belong to country clubs think that drug dealers who go to prison are scum of the earth. Their own kids could be doing and selling drugs but their own kids are not scum of the earth. Marc Rich gets a pardon from Bill Clinton and gives money to the Clinton Library. Scooter was Marc's lawyer. If there was not a Library and Marc did not have money and Scooter's name was Fall Guy, then Marc would not have gotten the pardon.

Posted by: mpb | Jun 16, 2009 10:33:13 AM

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