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June 28, 2010

"Nightmare of federal sentencing guidelines"

The title of this post is the headline of this new commentary by Bob Barr in the Atlanta Journal Constitution. Here are a few excerpts which highlight how Barr uses a recent high-profile white-collar sentencing to make his points about federal sentencing laws and practices:

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison –- in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.

While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone....

What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.

Related posts on the Rubashkin case:

June 28, 2010 at 04:48 PM | Permalink

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Comments

hmm

"What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence."

IF ANY of this is true we are locking up the WRONG CROOKS and our govt's justice department needs a new name since it's full of either nazi's or commies!

Posted by: rodsmith | Jun 28, 2010 6:20:32 PM

We are having a great conversation about Medieval jurisprudence, in which the Harvard Law grad has a PhD. Almost every young Ivy grad at this party for Obama is in white collar criminal defense. I change the subject a little. I ask, "What do you think about a personal counterattack against the federal thug trying to destroy your innocent client, and persecuting mere sharp business practice. You can start slowly with total, forensic e-discovery on personal and government computers, refer all child porn to the FBI. But really try to destroy the person, in every conceivable, if lawful manner. I would like to see you guys stop collaborating with the enemy of your client just once."

"This is not legal advice and we do not have any client lawyer relationship." "What?" "However, what you propose is totally unethical, ineffective and destructive. If it ever works, the prosecutor will be replaced by an even more powerful, uncompromising supervisor attorney. I have to speak to some other people, right now." "What? What? Come back here, I am not finished."

Mr. Otis is safe from the defense bar. However, if innocent the defendant should find a lawyer that is willing to take down the entire DOJ division, destroy these traitors. If some decide to commit suicide, so much the better. Make it so only crazy, desperate, bottom of the class losers ever decide to work there again.

On the other hand, if the defendant is guilty and caused more than $6 million in damage, he has assassinated the value of an economic person. He deserves to be summarily executed. He should feel lucky the government thugs are such criminal lovers.

The aim of the federal cult criminals is not to end business fraud, but to run their Inquisition 2.0 confiscatory scheme. It is to generate money, the guilt or innocence of the defendant is completely irrelevant. This is the Mafia, but your cannot call the FBI to arrest them. They are the FBI. That leaves only self-help and street justice as recourse. It should start with total, all out legal war, with discovery, publicity campaigns in all the places these thugs go to. A list of internal enemies should be drawn up, and all service and product providers refuse these cult criminals their products and services. If they want to destroy our country, the country should return the favor.

Naturally, the illegal alien paramilitary gangs who behead people that disrespected them in this country, those get virtually no attention from these traitors. Maybe they prosecute for a civil rights violation any police officer that criticized one. Otherwise, nothing.

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