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May 25, 2010

Remarkable opinions in remarkable sentencing case from the Eighth Circuit

A helpful reader made sure I did not miss the remarkable sentencing work coming from the Eighth Circuit today in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here).  The case is remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect) and the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse).  The district judge sentenced the defendant to 121 months, the bottom of the calculated guideline range.  The majority of the Eighth Circuit panel in Deegan affirmed, rejecting claims that the sentence was procedural and substantively unreasonable.

Though the majority opinion in Deegan is an interesting read, the ruling is truly a must-read because of the remarkable 50+ page dissent by Judge Bright.  That dissent starts and ends this way:

I respectfully dissent.

This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d and remanded to 327 F. App’x 93 (10th Cir. 2009).

In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen. [FN5] ....

[FN5] As a federal judge, I had never heard of the term “neonaticide” nor encountered a case of neonaticide until this case.  From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick.  The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.

This judge has read and reviewed several hundred federal sentencing cases.  Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered.  The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation.  The conduct of the district court in this case and the majority’s affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220 (2005).

This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant’s residence on an Indian reservation in North Dakota.  I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination.  This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts. ...

*   *   *

I conclude with this comment.  The violence against women and children on Indian reservations is a national scandal.  It must be addressed not only as a criminal matter but as a societal concern.  If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan.  The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.

May 25, 2010 at 04:20 PM | Permalink

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Comments

There are some remarkable things about the opinion, and some entirely unremarkable ones.

The UNremarkable thing is that Bright remains a kneejerk vote for the criminal. He and Nancy Gertner must be related.

There are at least two remarkable things about Bright's dissent: First is how Bright considers the vicitm's status as a newborn (and therefore completely helpless) to be a factor FAVORING the killer. The baby had no chance, of course, but this does not bother Bright in the slightest. Amazingly, it seems to excite him. Relatedly, the victim's suffering never fazes him; indeed I wonder if he thought about it at all. If the mother felt like it would be a good idea to kill the kid, why didn't she just belt him over the head with a tire iron to put him out of his misery quickly, rather than sentence him to a lingering death by starvation? Think that feels good? Personally, I wouldn't know. But at least I would care about knowing, which would put me one step ahead of Bright.

The second remarkable thing about his dissent is how far he looks down his nose at the three judges (two on the panel and the sentencing judge) who unanimously disagreed with him. His dissent is a burlesque of conceit and self-importance. He makes like he's the only one who knows or cares about the circumstances of the case. The stupidity and thoughtlessness of his colleagues is just assumed, so he lectures them in on-high tones and, (which at least he acknowledges) at great length.

I would say that a third remarkable thing is his implicit but very clear view that Indian culture is primitive and inferior. If a conservative intimated any such thing, he'd be branded racist in a New York minute. It won't happen to Bright, of course, because he's no conservative. And to be honest, I doubt he's a racist. I just think he's used to too many NACDL banquets at fancy hotels, so he thinks life on a reservation MUST be beneath his standards.

The bottom line is that a child killer who knew full well what she was doing, intended to do it, lied to the cops about it -- but had the good sense to rent a shrink who could put the usual mental-state excuses in fancier than usual language -- wound up with the guidelines rock-bottom minimum, and STILL Mike Bright isn't satisfied. I suppose he won't be until there's no penalty at all for starving your kid to death.

Now there's compassion for you.

Posted by: Bill Otis | May 25, 2010 5:30:58 PM

In Colorado, the offense would have been first degree murder, and the sentencing choices would be the death penalty (unprecedented) or life without possibilitty of parole (not unprecedented).

Posted by: ohwilleke | May 25, 2010 5:45:04 PM

Reading through Bright's dissent, I could not help but feel sympathy for Deegan. She had her chances in life taken away from her in a far worse way than I have ever read or seen depicted.

But I can't get past the fact that she left a newborn to die a prolonged death. To say that a willful execution-by-deprivation (by her own admission) cannot reasonably merit 10 years' imprisonment is absurd. I'll grant that her risk of re-offense may be low, but that's not the point. Homicide is the least-repeated crime (less than 2% recidivism), but we sentence killers to lengthy prison terms anyways because the criminal justice system has to have some sense of retributivism, even in the hard cases where the killer is also a victim in her own way.

Posted by: Res ipsa | May 25, 2010 5:46:52 PM

Bill - "His dissent is a burlesque of conceit and self-importance."
If so, of which assessment I very much disagree, he must be taking lessons from you. Your diatribe illustrates everything that is wrong about the criminal justice system - the rank corruption of hate and intolerance, and the irrational denial of injustice whatever the circumstances.

Posted by: peter | May 25, 2010 5:54:13 PM

Peter: Your critique of Bill Otis' analysis is short on facts- long on sanctimonious blather.

You and Judge Bright are the outliers in this case.

Posted by: mjs | May 25, 2010 6:10:16 PM

The dissent is pretty far off the rails. It took me about 5 minutes wondering what the pdf of the magazine had to do with anything to realize the answer was "nothing in particular." I mean, I could see where he was coming from a little more if the woman got life or 30 years. But I think the view that ten years is substantive unreasonable for this offense would be a minority one in most any group of people, or judges.

Posted by: Jay | May 25, 2010 6:19:20 PM

The ancient Greeks often left children out in the wilderness to die, like Oedipus. The Spartans often dropped children from cliffs if they were going to be a burden.

On the other hand: "In one notorious case, in 1881, a woman named Lizzie Aarons had been found walking 'ragged, nearly barefoot, without stockings in the snow,' and extremely pregnant. She was taken in to a lodging home by a sympathetic woman; the baby was born, hear to cry, but the next morning 'its tiny body was discovered in the courtyard below.' In this case, too, the jury, obviously sympathetic, let the defendant go." {Friedman, Crime and Punishment in American History, p 232.)

Fortunately, everyone that posted so far agrees we have evolving standards of decency.

Posted by: George | May 25, 2010 6:19:26 PM

mjs --

Thank you.

peter --

"...he must be taking lessons from you."

I don't think so. I'll be teaching at Georgetown Law School this fall, and I haven't seen his name on the signup sheet. But if he wants in, I'll be happy to help. He needs to be taking lessons from SOMEBODY.

"Your diatribe illustrates everything that is wrong about the criminal justice system - the rank corruption of hate and intolerance..."

To the count of intolerance for intentionally starving your kid to death, guilty as charged Your Honor. And you'd best impose a stiff sentence, because I'm a guaranteed, 100% recidivist.

"...and the irrational denial of injustice whatever the circumstances."

An adult has a chance to help herself (and according to Bright himself, the defendant DID help herself -- after she killed her kid). A child has no chance to help himself. An infant has less than no chance to help himself.

Ever wonder why these mother-kills-kid cases inevitably involve very small children? Clue: because if you try it with your 15 year-old, he'll fight back.

Do you not understand that a person a few hours old is still a human being? That he has feelings? That he can experience pain? If so, your post gives no evidence of it.

Posted by: Bill Otis | May 25, 2010 7:27:32 PM

I'm not an adjunct at Georgetown, I don't know anything about Judge Bright, and I'm not intimately familiar with the sentencing guidelines, but I don't think it's much of a stretch to note there's something amiss with the district court's sentence (and the majority's affirmation). There's plenty of evidence that the situation fell outside the heartland of the guidelines, but the district judge imposed a normal guideline sentence without much justification and called it a day. It would be one thing to clearly explain why the judge thought the circumstances were not enough to justify imposing a non-guideline sentence, and that would certainly be entitled to a presumption of reasonableness. However, that's not what the judge did. Judge Bright's dissent may not be persuasive, but given the district judge's actions, it's certainly a defensible position.

Bill: You're a law professor, and you're accusing a federal judge of being excited by a child's murder? I don't envy your students.

Posted by: Andrew | May 26, 2010 12:16:37 PM

Such an "unusually heinous, cruel,
and brutal” crime yet it took the FBI seven years to get around to working it.

The facts show Deegan as a somewhat sympathetic character: a hopelessly impoverished woman with a drug habit, a history of being abused, three children to care for and a raging case of postpartum depression after the birth of a fourth child.

Read Bill's post and she comes off as Hannibal Lecter in a buckskin skirt.

The irony in this weighty consideration of whether this sad woman is being punished harshly enough is that her life in prison will probably be a good deal better than the one she left behind on the reservation.

Posted by: John K | May 26, 2010 12:42:12 PM

John K --

"Read Bill's post and she comes off as Hannibal Lecter in a buckskin skirt."

Point to one thing I accused her of doing that she didn't do.

Posted by: Bill Otis | May 26, 2010 12:56:42 PM

Andrew --

"You're a law professor, and you're accusing a federal judge of being excited by a child's murder?"

Read his opinion.

"I don't envy your students."

Then don't sign up for the class. It was oversubscribed last year anyway. I suspect there will be students who, like me, are less than enthralled with a dissenting opinion that reads like a love song to someone who starved to death a helpless baby.

Posted by: Bill Otis | May 26, 2010 1:05:18 PM

A child died of deliberate neglect, its surviving siblings have been orphaned and their lethally irresponsible mother is in prison. The facts speak for themselves; Why drown them in incendiary, hyperbolic, prosecutor rhetoric?

"...if the mother felt like it would be a GOOD IDEA to kill the kid..."

Maybe she felt it was an awful idea, but maybe in her miserable condition she couldn't imagine a suitable alternative (perhaps for reasons that, if we knew them, might help explain why she hadn't told others in the family about the pregnancy).

"... she SENTENCED (the baby) to "a lingering death by starvation... (Deegan) knew full well what she was doing, intended to do it, lied to the cops about it -- but had the good sense to rent a shrink who could put the usual mental-state excuses in fancier than usual language..."

Vivid imagery. Dramatic. Stirring. Makes her look calculating and ruthless, as opposed to drug addled and profoundly depressed. It's possible she even deluded herself to think the baby would be discovered and cared for by others. Who knows?

Who's to say my speculative version is less plausible than yours, Bill? Or that regret for the baby's death is incompatible with compassion for the mother responsible for it?

Posted by: John K | May 26, 2010 3:15:21 PM

John K --

"A child died of deliberate neglect, its surviving siblings have been orphaned and their lethally irresponsible mother is in prison. The facts speak for themselves; Why drown them in incendiary, hyperbolic, prosecutor rhetoric?"

My "rhetoric" is considerably more restrained, not to mention a good deal shorter, than Bright's paean to the defendant.

"Maybe she felt it [killing the kid] was an awful idea, but maybe in her miserable condition she couldn't imagine a suitable alternative..."

Only she managed to take care of the other three and hide the remains of the disfavored one. That is not the mental state of someone who couldn't imagine a suitable alternative.

If the law can't demand that a sane person refrain from killing childern, what the hell can it demand? She could have done exactly what she did, with one exception: On her way out the door, she could have stopped by a neighbor and said, "There's a newborn in my house who needs looking after. I won't be there. Somebody needs to do something."

If she'd done that, we wouldn't be talking about this. As I say, a law that cannot demand AND ENFORCE that pitiful amount is not a law worth having.

Me: "... she SENTENCED (the baby) to "a lingering death by starvation... (Deegan) knew full well what she was doing, intended to do it, lied to the cops about it -- but had the good sense to rent a shrink who could put the usual mental-state excuses in fancier than usual language..."

You: "Vivid imagery. Dramatic. Stirring."

And true.

"It's possible she even deluded herself to think the baby would be discovered and cared for by others. Who knows?"

She didn't even CLAIM she thought the baby would be found by others, which strikes me as really good evidence she thought nothing of the kind.

If she wanted compassion, she could have asked for help -- for herself and her child.

The obligation of a mother to care for her young children is the most basic obligation known to the human race. If the law cannot enforce that, there is nothing it CAN enforce.


Posted by: Bill Otis | May 26, 2010 3:53:48 PM

Bill - your problem is that you can't get beyond the outcome of the crime. That is all that you see, or certainly all that you think appropriate to consider. It seems for you, all that is required of the law is to identify (hopefully correctly) the perpetrator, and then to punish as hard as the law will allow. I would have thought it pretty basic legal process in any society to consider both the motive and the psychological state of the perpetrator, and also the contributory factors that gave rise to them. For example, in some circumstances a person will pick up a gun and kill someone. A naive layman might assume that is murder. But if we learn that the victim was in the act of stealing, or in the act of assaulting a relative, or an illegal immigrant .... then the law is less certain of culpability. In this particular case, it is a known condition of post-natal women that they are prone to depression and other psychological disturbance ... even rejection of the newborn. We know that condition can be exacerbated by a lack of support. We also know that people who have experienced abuse in childhood may be more prone to psychological damage than others. In the first examples, mitigation of the killing might be total ... as if no murder was committed ... yet the "offense" of the victim probably would not have merited a severe sentence at all. In the case we are discussing, a child was either neglected or effectively abandoned, which led to death. Of course this, of itself, is an illegal death. But the dissenting judge has said that in his view there were obvious and compelling mitigating circumstances that were relevant and should be taken into account. He went further to claim that these particular circumstances are known to be a particular problem in Indian communities and should be addressed by society rather than overly criminalizing those who fall victim.
He had an absolute right to make those points in his dissent, and in fact that is a duty of his office if that is what he believes.
If you disagree with the facts that he outlines .. fine - you are at liberty to say why you think they are wrong. But you go further in attempting ridicule and the usual blather about "liberal" judges, and in fact fail completely to address the substance of his argument. For a "professor" of law, that seems to me to be inexcusable. Either the consideration of mitigation is a right of all defendants or it is a right of none. My understanding of the law is that it is the right of all.

Posted by: peter | May 26, 2010 4:24:52 PM

peter --

Just a couple of points very briefly.

As I was saying to John, if soceity cannot set its face against infanticide, it has just flat-out lost its moral bearings. It is impossible to imagine a victim more innocent or defenseless than a baby. To those -- like you in other contexts -- who speak for the innocent and defenseless, seeing the source of my distress with Bright should not be difficult. Yet among Bright's page after page of excuses for the mother, there was not a word about the victim.

I agree that the mother's circumstances warrant mitigation. She GOT mitigation -- the bottom point of the guidelines. She could have gotten more, that's true. But three of the four judges who looked at this case thought the sentence was reasonable. That I agree with this does not make me remarkable one way or the other. It makes me ordinary.

Just not on this board.

That a defendant has a right to be heard in mitigation, and that a circuit judge has a right to explain why he takes her side, are things I did not and do not question. What I question is the OUTCOME they would have reached. The reasons supporting the majority's outcome are adequately explained in the court's opinion.

As I said in the post above yours, this lady could have done exactly what she did, with one exception: On her way out the door, she could have stopped by a neighbor and said, "There's a newborn in my house who needs looking after. I won't be there. Somebody needs to do something."

She elected not to do that. A society that doesn't condemn and punish such a decision is not compassionate. Indeed, it has forfeited compassion and anything else that might distinguish it from hell.

Posted by: Bill Otis | May 26, 2010 5:22:05 PM

It's not very comfortable being such a skeptic, but I would like to see a video of her interrogation - confession.

Posted by: beth | May 26, 2010 5:46:50 PM

Me, too, beth, but the FBI doesn't tape interviews with suspects. It's their policy.

Posted by: John K | May 26, 2010 6:17:29 PM

I would like to see two policies implemented.

1. The FBI will videotape all questioning where physically feasible.

2. Defendants stating that the questioning took place by coercion will do so under oath and penalty of perjury.

This combination will bring a stop to a lot of lying in suppression motions.

What the defense would have you believe about FBI questioning is that it occurs in a dungeon with rubber hoses. What actually goes on is that it occurs in an office with the more-or-less constant offer of a ham sandwich and a cup of coffee. Monica Lewinsky's went on at the Ritz Carlton.

So bring on the videotape. It can't happen fast enough for me.

Posted by: Bill Otis | May 26, 2010 7:08:29 PM

I know Monica Lewinsky was in the Ritz Carlton - that in itself says something about discretion. I guess that's why we worry. I have also seen two defendants in the same case same indictment treated very differently. One was almost in a dungeon and one almost in the Ritz Carlton. Same indictment co-conspirators.

Posted by: beth | May 26, 2010 7:48:17 PM

Right. Want a ham sandwich, Monica? Great. Oh BTW, give us some dirt on Clinton or your parents will grow old and die in a federal prison.

The fibbing (FBIing?) isn't limited to suppression motions. In the last trial I covered for a writing project, two agents acknowledged under cross that they'd stretched and embellished defendants' remarks in interviews in ways that made the defendants appear more culpable.

A third agent testifying in the same trial got caught -- in a cross examination worthy of a Perry Mason episode -- telling an outright whopper.

Of course any potentially damning words on phone taps or wired conversations were available for jurors to hear, but the interrogations? No.

Coercion nowadays is stealthy (no need for rubber hoses or phone books). It occurs in the selection of charges (and gains power from corresponding draconian guidelines and MM sentences). And of course jurors are never aware of any of it...in those rare instances in which cases actually go to trial.

Posted by: John K | May 26, 2010 8:11:37 PM

John K --

So do you accept my proposal that we routinely videotape FBI questioning, and that statements made in suppression motions claiming coercion be given under oath and subject to perjury prosecutions?

Yes? No?

"Right. Want a ham sandwich, Monica? Great. Oh BTW, give us some dirt on Clinton or your parents will grow old and die in a federal prison."

I assume you are able to document from a neutral source (not MoveOn.org, etc.) the claim that the FBI threatened Monica's parents with long prison terms? For what? And where did you get the notion that the FBI imposes sentences? I thought judges did that, after a unanimous finding of guilt by a jury of strangers. While we're at it, where did you get the notion that people are free to violate federal law and not have the FBI inquire about it? Or that they should be able to violate it with impunity, inquiry or no?

And what was it that Monica disclosed to her questioners? It wouldn't have been, like, you know, the T-R-U-T-H or anything like that? God forbid that the FBI seek truthful answers. What WERE they thinking?

You keep referring to cases you refuse to name. Any neutral assessment of them would have to await your providing the record, rather than your subjective characterizations.

Do you really think there's nothing wrong with stonewalling/lying to the grand jury? A while back I quoted for you a couple of paragraphs from Lewis Powell's opinion for the Court in Calandra. Do I need to quote them again? Or is it just that Powell is another Establishment Facist Pig?

Posted by: Bill Otis | May 27, 2010 12:22:44 AM

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