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March 29, 2011

You make the call: what sentence should Detroit's Granny Valjean get for Social Security fraud?

Here is a fitting challenge not only for all sentencing practitioners, but for anyone else who likes to imagine wearing a black robe and dispensing sentencing justice.  This Friday in Detroit, as detailed in this local article, a notable and sad federal prosecution reaches sentencing: 

Her mentally ill son was in prison.  Her daughter was battling drug addiction.  And her five grandchildren were in danger of being sent to foster care.  So Mary Alice Austin of Detroit, who said she needed money to raise the grandkids, paid someone to pose as her son so she could continue receiving his disability benefits, court records show.

During the 20 years her son was in prison, Austin, 67, received nearly $120,000 in Social Security benefits, records show.  Now, she may be headed to prison after pleading guilty to the fraud. She is to be sentenced Friday....

Austin's lawyer and grandchildren are pleading for mercy.  "My grandmother has been in my life since I was born.  If she hadn't (been), no telling what would of happened to me or my siblings," one grandson wrote to the judge....

On Friday, Mary Alice Austin will be sentenced for unlawfully accepting her son's Social Security checks, pretending to care for him even though he was in prison for 20 years for armed robbery and drug offenses.  Under a plea deal, she faces 10 to 16 months in prison.

Court documents show Austin paid someone to pose as her mentally disabled son to get his government checks.  Austin, who was raising her five grandchildren, stole nearly $120,000 during two decades -- about $6,000 a year.

Austin's family members and attorney say she was just trying to survive.  The government maintains she broke the law, using deception and trickery....

"Although Ms. Austin regrettably continued to accept her son's Social Security checks unlawfully, she did not use the money to live beyond her means or to live a lavish lifestyle," Austin's lawyer, Natasha Webster, wrote in court documents.  Webster is pleading for leniency on behalf of her client.  She has asked U.S. District Judge Victoria Roberts to sentence Austin to home confinement rather than prison. "Significantly, she has accepted responsibility for her actions," Webster wrote.

Austin's two grandsons also have written the judge letters.  One, age 12, writes: "We didn't have much but what we did have she made it work ... I'm just asking you don't take my grandmom away from us."

But Austin must pay a price for her crimes, including "some period of incarceration," Assistant U.S. Attorney Blondell Morey argued in court documents.  "There is little need in this case to deter or protect the public from a 67-year-old grandmother," Morey wrote in a March 23 filing.  "However, defendant must be punished for a crime that earned her over $100,000 and took place over 20 years."

Morey also pointed out that Austin has a criminal record, including a conviction for welfare fraud, which happened during the Social Security scheme.  "This was not a crime of opportunity, but one committed over two decades," Morey wrote.  "Her most egregious acts were hiring, on three separate occasions, someone to impersonate her son to the Social Security Administration."

So dear readers, if you were in the position of US District Judge Victoria Roberts and thus had to impose later this week a sentence upon Mary Alice Austin that is be "sufficient but not greater than necessary" to achieve federal sentencing purposes, what sentence would you select? 

March 29, 2011 at 06:31 PM | Permalink

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Comments

Dear Sitting-in-Judgement,

First, I would have to ask: what was this woman's mentally disabled child doing in prison? Second, I would ask what would it cost and what is the likely outcome of those grandchildren being sent to foster homes? Regardless of the law which continues to fall far short of justice on most days, I would have to ask the questions.

You can argue with me all you want about the letter of the law, but I happen to know that most courts in the US are currently run as "maritime courts" which means that the judge has the discretion to decide. So what if this woman hired somebody to play the part of her disabled son. She cared for 5 grandchildren at a cost of $6,000 per year for all of them. Evidently, they know how to write and they can author letters which is more than children coming out of foster care can say.

The fact is that if our systems were oriented around helping people instead of saving money for billionaires and corporations, this situation would not have occurred. Rather than compound the problem by sending an old woman to jail where the costs would exceed what she took in a couple of years, I would say that another solution needs to be devised. The fact is that she saved the state and county a fortune in administration and placement fees for the children. I am sure that they turned out better by not being split up and given to strangers.

WHEN DID COMMON SENSE VACATE THE COURT SYSTEMS? If the lady needs to do some work to compensate the court, then figure that out. There are billionaires doing more harm than this woman.

MK

Posted by: MK | Mar 29, 2011 6:54:38 PM

Having been an assistant district attorney for 25 years, I hardly think I'm soft-hearted, but one year home confinement sounds just about right.

Posted by: Bracton | Mar 29, 2011 7:54:50 PM

MK - common sense vacated the court system some time ago when prosecutors were far too much control! What would any jail time for this grandmother other than give business to private facilities or take tax payers money? Here is an idea, have this grandmother talk to a group of unemployed welfare families with multiple children let alone five and tell them how she accomplished raising five children on 6,000 a year for 20 years!

Posted by: fixnrlaws | Mar 29, 2011 8:56:56 PM

Is anything her fault? What home did she provide to her children when they were growing up other than one that demonstrated that lying for someone else's money is OK as as long as you do not live too lavish a lifestyle?

The sad part of this case is that leniency to her will simply demonstrate to her grandchildren that this conduct while illegal, is not wrong. Many people simply accept their lot in life or work to improve it. Ms. Austin improved it by committing multiple crimes of Social Security Fraud and Welfare Fraud. Not the crime of the century to be sure, but a crime nonetheless and one which over 20 years she could not see fit to stop and find another way.

Of course, an appropriate punishment for her will punish her grandchildren for the failures of their parents. Which leads to the question of where are their fathers (for the daughter's 4 children) or mothers (for the disabled son's child) or the other grandparents?

All that being said, if the grandkids get that the grandmother did wrong then a stiff penalty is unnecessary. If they don't, that is why I am not a judge.

Posted by: David | Mar 29, 2011 9:14:27 PM

According to BOTIS, no one should answer the question in the title of Doug's post unless they have read the case file.

Posted by: amused by Bill | Mar 29, 2011 9:28:15 PM

$10 fine, after all if Judge Camp can buy drugs from a hooker multiple times, have a loaded gun in the car seat, steal a government laptop. He makes a plea deal for the felony, the judge drops the felony and gives him 30 days in prison.

It would be fair...No mention that he was high on drugs while he was on the bench.

Oh well....

Posted by: Josh | Mar 30, 2011 12:24:46 AM

$120,000 sounds like a lot of money. $6,000 a year to raise five grandchildren doesn't. It costs around $20,000 to $30,000 a year to imprison someone, though it would probably be a bit cheaper if she is sent to a prison camp. She's more of a burden to society if we lock her up than she was when she was stealing from Social Security.

On the whole, I'd agree with Bracton. I just don't see a lot of sense in locking her up.

Posted by: C.E. | Mar 30, 2011 12:25:07 AM

Wanting to know all the facts, instead of some of them as related in a news article, before making a sentencing recommendation.

Oh, the horror of it.

Posted by: Bill Otis | Mar 30, 2011 1:05:28 AM

Probation.

Posted by: lawdevil | Mar 30, 2011 11:48:57 AM

i have to agree what a waste of time!

BUT i just loved this statement from the DA!

"The government maintains she broke the law, using deception and trickery...."

Yep can't have anyone else doing that. That's the government's job!

last 50 years or so they have been the biggest user's of deception and trickery and out and out THEFT!

Posted by: rodsmith | Mar 30, 2011 1:58:05 PM

I was divorced from my 1st husband in 1996. I have 2 kids and MS and am unable to work. My ex husband is filthy rich and was ordered to pay child support and alimony. He did until re-marrying in 1997. After that nothing. Of course I fought this and he has 2 very prestigious lawyers in Milwaukee and he has never gotten in any trouble or gave us a cent. I applied for SSI and got it. I met a man in 2000. We moved in together in 2001. We were married in 2003. I brought a paper to SS to tell them I re-married. In 2008 I was indicted for SS fraud. I got an expensive lawyer in Milwaukee. Frank Gimbel. He told me to plead guilty and get a lesser sentence or guilty and have a trial and possibly go to prison. Now I have kids. What kind of a choice was that? The SS case worker said I never notified her of the marriage. She lied and I lost the paper. I was sentenced to 3 years probation and have to pay back 24,000, which is deducted from my SS disability check at $100 a month. I was told by my mean probation officers to just forget it and go on with my life, that nothing can be changed. I can't. I was told that I should have ceased the SSI for my children as soon as I moved in with my now husband. They said at that time he was required to use his income for my children. It's not right. Not at all. The morning of the sentencing I found the paper I gave to my SS case worker stating I got married. Sitting on top of a box I went through many times. I brought it along and the lawyer made copies of it and gave one to the judge, and the SS lawyer. Here was the proof I was looking for. It was too late. I am now off probation but think about it every day. What happened to me is wrong. I should have pleaded guilty and took the chance of going to prison. But I was basically scared into the other. Is there anything I can still do? Until the day I die I will regret this. I have NO faith in our justice system. I guess money talks because my ex husband got out of paying his debt, and is still wealthy. Here I am. Had to borrow $10,000 dollars from my parents from this great, not, lawyer and he did nothing. Both of my parents died in the same year, right after my sentencing, a month apart. I truly believe they died of a broken heart, so disappointed in our justice system. I miss them. I did nothing wrong.

Posted by: Darlene | Apr 16, 2011 9:14:09 PM

The granny should be just let go. As a country, we have better things to do.

Darlene:

At the outset, I would like to admit that I do not know all the facts of your case. Did you try to withdraw your plea of guilty on the ground that you had evidence of your actual innocence? Did you try to file 28 USC Section 2255 (based on ineffective assistance of your counsel, etc.)? Have you thought about filing writ of coram nobis, coram vobis, or audita querela? (Admittedly, it is a long shot, but hey, if you do not try it, you will NOT get it. That last avenue is still possible.)

Posted by: John Marshall | Apr 22, 2011 4:44:40 AM

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