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February 10, 2010

Interesting prison and restitution recommendations in Erin Andrews peeper prosecution

This news report from the Los Angeles Times, which is headlined "Prosecutors ask for 27-month prison sentence for man who spied on ESPN's Erin Andrews," provides a high-profile and opaque window into the alchemy behind how federal prosecutors develop sentencing recommendations. Here are the basics from the report:

The Illinois man who spied on an ESPN reporter through her hotel room door and posted nude videos of her on the Internet may face time in federal prison and more than $300,000 in restitution, according to a sentencing document filed Monday.

Prosecutors in the U.S. attorney’s office in Los Angeles are seeking a 27-month prison term for Michael David Barrett, 49, who they said secretly filmed reporter Erin Andrews at three different hotels in three states as she showered and dressed for work.  They said he removed the peephole device from her hotel room doors and use his cellphone to capture video of her in the nude.

Over the course of nine months, according to a sentencing document dated Monday, Barrett tracked Andrews across the country, running Internet-based background checks on her, calling several hotels to see where she would be staying and then deliberately requesting hotel rooms adjoining hers so he could access the door to her room with ease.

The sentencing document calls Barrett’s conduct “part of a long-term obsession involving Victim Andrews, as well as a significant number of other women.”  After attempting to sell the cellphone videos to Los Angeles-based entertainment news website TMZ, prosecutors wrote, Barrett posted several videos of the sports reporter online, with such titles as “Erin Andrews in a Pink Thong” and “Sexy and Hot Blonde Sports celebrity shows us her all.”

In July 2009, the document states, the videos topped Google’s “most searched items” list.  The court filing shows that the U.S. attorney’s office is seeking $334,808.27 in restitution on behalf of Andrews and her family members.  “The emotional distress caused to her and her family cannot be overstated,” said the filing document, calling Barrett’s actions “very horrific.”

Andrews was not the only woman the former insurance company employee targeted, prosecutors said. Barrett also filmed 16 other women similarly to the way he filmed Andrews.  He ran Internet background checks on more than 30 women, including a number of other female sports reporters and television personalities.

Barrett pleaded guilty to one federal count of interstate stalking in December.

Though I am chary about assailing the prosecutors' sentencing recommendations without knowing all the details surrounding the defendant's crimes and his background, my first instinct is that a recommendation of only 27 months in prison seems pretty low.  As described above, defendant's actions here seem much more culpable and harmful than the acts of many child porn downloaders for whom federal prosecutors often urge sentences nearly of more than 200 months.  I would assume that the 27-month recommendation here is in line with federal guideline calculations, but that in turn suggests to me that the guidelines in this setting need some tweaking.

Relatedly, I find fascinating the report that "the U.S. attorney’s office is seeking $334,808.27 in restitution on behalf of Andrews and her family members."  Not only do I wonder who got tasked with devising a formula for restitution in this case that allowed a calculation to the penny, but I am also intrigued that Andrews' family members are apparently due a piece of the restitution action.

February 10, 2010 at 11:39 AM | Permalink

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Comments

I agree with you that if this sentencing recommendation is correct, then those for child porn are way out of whack.

This defendant benefits (if that’s the right word for it) because his crime is so unusual. If there were lots of guys running around removing hotel peepholes and spying on attractive female sportscasters, Congress would surely feel the need to “do something about this rampant problem.”

Although any individual instance of downloading child porn does far less harm than these crimes did, it happens much more often. Congress therefore felt it had to enact far more serious penalties. Whether they got it right is a whole other question (I don’t think they did), but you can see how it happened.

As you’ve pointed out, someone who molests an actual child could easily wind up with a lighter sentence than someone who downloads a bunch of stuff but never touches anybody.

Posted by: Marc Shepherd | Feb 10, 2010 12:33:04 PM

Was there a credible threat of bodily injury or death? If not, and if he never had any violent intentions at all, he possibly pled guilty to a crime he did not commit and the government could not prove, but the sentence was probably negotiated and satisfactory to the parties. Probably no one wanted a trial, including the prosecution.

If there is a perceived threat of bodily injury or death, then why wouldn't peeping at CP have the same perception since CP productions are crimes of violence? Indeed, isn't that the basis for the CP possession man minimums?

Posted by: George | Feb 10, 2010 2:23:20 PM

I'm much more bothered by the restitution award than I am by the sentence. People are stalked all the time and I have never heard of a restitution award in such a case before. Perhaps there is some justification for it in this case; for example, if he was profiting off the photos. But the article suggests they were not sold. So I am bewildered as to why there is any award at all.

Posted by: Daniel | Feb 10, 2010 2:30:03 PM

http://msn.foxsports.com/more_sports/story/erin-andrews-stalker-020910

She doesn't agree with the sentence.

Doug, what's the rule with restitution--does it have to be out-of-pocket only?

Posted by: federalist | Feb 10, 2010 3:23:55 PM

i'm kind of with you daniel the restitutin damage award is criminal. But considering all the other victims they have evidence he stalked the 27 month sentence is a joke!

Posted by: rodsmith3510 | Feb 10, 2010 4:03:01 PM

Opaque? I'll say. The reporter should have read the government's paper and actually talked about what was in it. I'm sure the government said why it was asking for 28 months, and I'm flabbergasted the reported didn't think that was an inmportant point to report on.

I'll bet the Guidelines call for 21 to 27 months, in which case the prosecutor's recommendation is simply for the top of the range. If so I don't think asking for the top of the range is asking for leniency.

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Posted by: billige priligy | Aug 17, 2010 9:35:41 AM

People are stalked all the time and I have never heard of a restitution award in such a case before. Perhaps there is some justification for it in this case; for example, if he was profiting off the photos. But the article suggests they were not sold. So I am bewildered as to why there is any award at all.

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I am by the sentence. People are stalked all the time and I have never heard of a restitution award in such a case before.

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