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February 10, 2010

What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?

In this post earlier today, I noted the peculiar sentencing recommendation coming from federal prosecutors for the stalker/peeper who followed and filmed ESPN reporter Erin Andrews: only a 27-month prison term and exactly $334,808.27 in restitution.  I now see this follow-up story from the New York Daily News headlined, "ESPN's Erin Andrews says 27-month sentence for slimy video voyeur Michael Barrett is not enough."  Here's more:

Prosecutors asked a judge to put perv Michael Barrett behind bars for just a little more than two years in new court documents filed with the U.S. District Court in Los Angeles.

Andrews' lawyer Marshall Grossman said that's inadequate. "She is the victim," he told the Daily News. "My strong sense is that she will argue, as she did before, in favor of a tougher sentence."

Thanks to the federal Crime Victims Rights Act, Andrews has a statutory "right to be reasonably heard" at Barrett's scheduled sentencing on March 8. Though I am sure Andrews will exercise that right by urging the sentencing judge to be tough, I wonder if Andrews will (or should) advocate a precise "tougher sentence" for Barrett.

Of course, it is much easier for Andrews (and for victims in other cases)to advocate generally for a "tough" sentence than to propose a precise sentencing term as an alternative to what prosecutors and defense attorneys are advocating. Nevertheless, perhaps Andrews (and other victims in other cases) would be more effective in achieving a desired outcome when putting forward precise recommendations rather than just general advocacy.

Against this backdrop, I wonder if readers have thoughts about whether Andrews should urge a specific sentencing alternative and what such a specific alternative might be — e.g., many more years in prison? severe conditions of supervised release? shaming in the form of a required posting of YouTube video of Barrett naked in his prison cell? More broadly, I wonder if anyone can report on other cases in which a victim's sentencing advocacy was especially useful (or especially problematic) because the victim did (or did not) get specific.

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February 10, 2010 at 05:01 PM | Permalink

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"More broadly, I wonder if anyone can report on other cases in which a victim's sentencing advocacy was especially useful (or especially problematic) because the victim did (or did not) get specific."

Certainly you have not forgotten the hoopla surrounding Polanski and the position taken by his victim, have you?

Posted by: Daniel | Feb 10, 2010 5:12:34 PM

You note a high-profile example, Daniel, in which a victim is now really making a specific case adjudication recommendation to prosecutors (i.e., end the case, dismiss the charges), rather than a real sentencing recommendation to a judge. That said, it is a good recent example of a (relatively) vocal victim making clear her interests (and having those interests largely ignored by the system). Does it provide any useful lesson for Erin Andrews?

Posted by: Doug B. | Feb 10, 2010 5:35:18 PM

Discovery should be asked of Erin Andrews for the benefits of her victimization. All speaking engagement, all invitations to shows, the value of an increase of awareness in the public of her name only after this episode. Her dignitary damages are likely dwarfed by the publicity benefits, and she may end up owing the defendant $millions for he did for her career.

The defendant should probably be executed. But once we are discussing money changing hands, and lawyers making money off the transaction, then balance is necessary not just hysterics.

Posted by: Supremacy Claus | Feb 10, 2010 10:05:12 PM

Compare United States v. Al-Zubaidy, 283 F3d 804, which appears to be the circumstances the law was intended to apply to.

"Section 2261A has three main elements: (a) that interstate travel occurred; (b) that Defendant's intent was to injure or harass another person; and (c) that the person he intended to harass or injure was placed in reasonable fear of death or serious bodily injury to herself or a member of her family as a result of that travel.2 United States v. Vollmer, 2001 WL 21234, at *1 (8th Cir. Jan.10, 2001); United States v. Young, 202 F.3d 262, 1999 WL 1203783, at *3 (4th Cir.1999)."

And

"Al-Zubaidy is correct when he argues that § 2261A requires more than a showing that he crossed a state line and then later stalked Al-Shimary. He must have intended to harass or injure Al-Shimary at the time he crossed the state line. 18 U.S.C. § 2261A."

I'm trying to understand how Barrett is factually guilty under the plain language of the statute. Maybe some, or most, don't care. He is a "icky perv" guilty of something, after all, so who cares if the government could prove its case or not. Is that it? Or is factual guilt as defined by the charge something fundamental? Or maybe there was harassing that put someone in "reasonable fear of serious bodily injury."

The law isn't making sense given the known circumstances of the Erin Andrews case but I haven't followed it and don't know the details. Was there any threat or confrontation at all? Or is the prosecution of "interstate stalking" under a different statute? Would someone explain why § 2261A applies if it does?

Posted by: George | Feb 11, 2010 12:18:08 AM

Al-Zubaidy was apparently before a law revision, which now includes substantial emotional distress in that person.

Question answered.

Changes in the law make a big difference.

Posted by: George | Feb 11, 2010 1:32:14 AM

Doug.

I think the major lesson Ms. Andrews can learn is the the one you already pointed out. The the law gives her a right to be heard; it doesn't impose an obligation on either the prosecutor or the judge. So don't expect too much.

Posted by: Daniel | Feb 11, 2010 11:43:30 AM

If sentencing is just a catch-as-catch-can sort of thing, not closely related to scientifically and philosophically established principles, I suppose the victim's desires are relevant to what the sentence ought to be. In case sentencing has to have a serious purpose and rational justifications, it is hard to see why the victim should have any say in the sentencing unless she happens to have expertise in the field.

Sidney Gendin, Ph.D.
Professor Emeritus, Philosophy of Law
Eastern Michigan University

Posted by: Sidney Gendin | Feb 11, 2010 1:04:12 PM

Sidney.

That's a false dichotomy if I ever seen one. A goose that has no bones is only a lump of flesh. A goose with just bones is only a rattling skeleton. Right now the law suffers a serious case of morbid obesity. The right response to this disease isn't to strengthen the bones by vigorous exercise of the intellect. The best response is to put it on a diet.

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