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October 28, 2009

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

October 28, 2009 at 10:12 AM | Permalink


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I would say that such behavior should generally not matter. It would easily create situations where two similarly situated defendants are treated differently based on whether one received a re-sentencing that the other did not. Especially where the CoA panel all but orders an increased sentence I would hope such a factor does not come into play.

I can however envision a different situation. Offender is already in prison and has shown remarkable progress. Offender is then convicted on some new offense from before incarceration. I could see prison behavior being relevant in that case in that it might help show that the offender is no longer in the same circumstance as when the offense was committed.

Posted by: Soronel Haetir | Oct 28, 2009 11:44:40 AM

Soronel, many folks express these kinds of concerns about "two similarly situated defendants [being] treated differently based on whether one received a re-sentencing that the other did not." But, in my view, the fact that a defendant is subject to the stress and uncertainty of a resentencing itself entails that these two defendants are NOT similarly situated.

Put it differently, the defendant subject to resentencing was "harmed" in some relevant sense by being subject to a legally erroneous sentence. Though I am not suggesting that this "harm" itself should be compensated through a reduced resentencing, I am suggesting that this fact may be sufficient to justify considering developments that post-date the initial wrongful sentence.

Flip the situation around and I suspect there are relatively few prosecutors who would say it is categorically improper to consider a defendant's bad prison behavior at resentencing.

Posted by: Doug B. | Oct 28, 2009 12:19:08 PM

I would say that bad behavior in prison should be equally out of bounds for a resentencing. Though again it would be fair game for consideration in sentencing for any new conviction.

Gall as an example placed a great deal of weight on the fact of self-rehabilitation prior to any prosecution having begun. The same acts after the commencement of prosecution would not have been nearly as compelling. I believe that distinction is very much correct.

Posted by: Soronel Haetir | Oct 28, 2009 1:07:29 PM

This is another issue where one-size-doesn't-fit-all, like the victims' wishes. Some kid steals a car and gets on straight and narrow in prison, well, there's an argument. These monstrous crimes. NFW.

Posted by: federalist | Oct 28, 2009 2:00:20 PM

"I would say that such behavior should generally not matter. It would easily create situations where two similarly situated defendants are treated differently based on whether one received a re-sentencing that the other did not."

Is fairness more important than accuracy?

Posted by: federalist | Oct 28, 2009 2:02:13 PM

I was in Carswell FMC in Ft. Worth Texas. Linda Kaufman and myself were in an 18 month residential faith based program called The Life Connections Program.
I knew her personally. I find it hard to believe that she would have done any of these acts out of malice.I do appologize as the question here is not one concerning Mrs. Kaufmans character or her innocence.
I believe that if bad behavior is considered, then by all means good behavior should be considered as well.

Posted by: Beth Allevato | Jan 10, 2010 12:32:41 PM

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