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July 16, 2009

A couple new federal sentences making Madoff's sentence seem short

There was a lot of talk after Bernie Madoff was given a sentence of 150 years in prison about whether this huge number was silly and pernicious because there was no way Madoff could live long enough to serve even a significant portion of this term.  Perhaps the same concerns should be raised with two new sentences recently imposed in federal court as detailed in these stories:

July 16, 2009 at 09:20 AM | Permalink

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I would say both of these, along with Madoff's sentence violate the parsimony provision of3553(a). Why do the guidelines contemplate a sentence of 1000+ months rather than just switching to natural life at some point?

I know I've seen guideline ranges of 360 to life, why not just settle on the obvious choice?

Posted by: Soronel Haetir | Jul 16, 2009 9:42:26 AM

Pointless, meaningless grandstanding. "Parsimony" appears to have become an utter anachronism.

Posted by: Gritsforbreakfast | Jul 16, 2009 10:41:56 AM

Why do the guidelines contemplate a sentence of 1000+ months rather than just switching to natural life at some point?

The Guideline is just a calculation. Like any mechanically-generated result, it occasionally produces absurdity. Of course, even before the Guidelines, really super-bad defendants sometimes got sentences much longer than their life expectancy, so this is nothing new. Once the judge has decided to sentence the defendant to a functional life sentence, the exact length is mainly symbolic, and I don’t have an issue with that. Congress did not intend for the parsimony provision to make such sentences impossible.

Posted by: Marc Shepherd | Jul 16, 2009 11:12:04 AM

Soronel Haetir --

This is just a question; I'm not picking a fight: Since the Supreme Court has now established that sentencing courts are free is disregard Congressional intent with respect to crack vs. powder, why should those courts not also feel free to disregard the parsimony provision of 3553(a)?

The answer to this question may make little practical difference, since there isn't and can't be any very specific definition of what is "necessary." Still, if I were a district judge, I would be pretty interested in the answer.

It seems to me that courts could well feel that it is "necesary" to make a symbolic statement, as Marc suggests. Personally I'm against that; a defendant is a human being, not a symbol. No one should be used as a bullhorn for the judge to broadcast his personal views, whether he's Darth Vader or Nancy Gertner.

Criminals should get individual consideration (indeed, all litiganats should get individual consideration). It is for that reason that I oppose both (1) "symbolic" sentencing, and (2) sentencing influenced by past racial statistics. Neither has anything to do with the INDIVIDUAL currently up for sentencing.

Posted by: Bill Otis | Jul 16, 2009 12:04:22 PM

"Why do the guidelines contemplate a sentence of 1000+ months rather than just switching to natural life at some point."

The Guidelines don't contemplate a sentence of 1000+ months and they do switch to life at some point. The most they contemplate for offense levels 42 and lower are sentences of "360 to life." At Offense Level 43 the range is just "life". But when a "life" term can't be imposed due to a stat max (i.e. Madoff) the Guidelines recommend consecutively stacking all the counts of conviction to guarantee a life sentence. That's how Maddoff's Guideline range was 150 years.

Posted by: DEJ | Jul 16, 2009 12:11:12 PM

It seems to me that courts could well feel that it is "necesary" to make a symbolic statement, as Marc suggests. Personally I'm against that; a defendant is a human being, not a symbol. No one should be used as a bullhorn for the judge to broadcast his personal views, whether he's Darth Vader or Nancy Gertner.

Any sentence that permits judicial discretion will, to some extent, reflect the personal views of the judge. Even before Booker, the Guidelines had room for judicial discretion; and now, of course, there is room for much more of it. If it didn’t want a human element in sentencing, then Congress could write it out of the law, but for now it is part of the process.

When I refer to a “symbolic” sentence, I am referring to the 3553(a) factors that are not specifically pertinent to the defendant, such as “to promote respect for the law” and “to afford adequate deterrence to criminal conduct.” Those are legitimate objectives of sentencing, and they go beyond the specific circumstances of an individual defendant.

Once the judge has determined that the defendant is going to receive the functional equivalent of a life sentence, these other factors take over. It matters little to the defendant whether he is sentenced to 100 years or 300 years; either way, he will be leaving prison in a pine box. To the extent the difference matters it all, it is mainly in those factors having little to do with a specific defendant, which I have labeled “symbolic.” You can label them some other way, if you want.

Posted by: Marc Shepherd | Jul 16, 2009 12:29:24 PM

Bill Otis,

I'm not sure I follow your Congressional intent argument. Certainly the USSC was free to believe that Congress had mandated a 100:1 ratio for all offenses, but as far as I am aware only mandatory minimum values are actually legislatively enacted. 3553 is statutory rather than regulatory, and thus unless found to be invalid somehow it should control the process.

Given that the parsimony provision would at least appear to be the overriding command of sentencing since it encompasses all the other factors it should not be so easily ignored. The courts are still required, for example, to give effect to the mandatory minimums that Congress has enacted, Kimbrough/Spears/etc do not releive sentencing courts of that duty. A more interesting question would be what will the courts do when one of those minimums violates the parsimony provision? We discussed such a case a few days ago, and as stated there, I believe that the courts will determine that the statute controls. The parsimony provision is a general command while the mandatory minimums and sentencing ranges are more specific.

DEJ:

As for reaching effective life sentences when the individual offenses do not allow for life terms, thank you, that makes sense.

Posted by: Soronel Haetir | Jul 16, 2009 12:45:25 PM

We can't speak of long sentences until we mention Ellen "Maximum" Morphonios (I know we're talking los federales, and she was a state judge in Florida.) For those who are unfamiliar, here is her obituary from the Guardian:

http://www.guardian.co.uk/world/2003/jan/06/usa.comment

Posted by: Edmund Unneland | Jul 16, 2009 3:55:42 PM

Soronel Haetir --

Good points you have there. Doug posted recently about a judge who went below a statutory mandatory minimum on the theory that imposing it on the particular defendant at bar would be disproportionate and therefore inconsistent with (one view of) the Eighth Amendment.

As I said at the time, I think that outcome will get reversed if DOJ authorizes an appeal. But it is illuminating nonetheless, because once the idea gets currency that a judge can toss a statutory mandatory minimum, other statutes can vulnerable.

I'm not saying this is likely to happen. But I can't dismiss the possibility either.

Posted by: Bill Otis | Jul 16, 2009 7:06:07 PM

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