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June 5, 2011

House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run

A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:

The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....

The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.

LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.

Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...

At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.

Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.

Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.

The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.

Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."

By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.

Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...

LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.

In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.

The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."

LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."

Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."

There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.

June 5, 2011 at 11:44 AM | Permalink

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Comments

I know you are a retributionist, in accordance with your view of the lawyer as the New Priest rather than as a technical person maintaining the safety from the rule of law, Job One and Job Last of government, the sole reason to have government at all. If you were sincere, the driver should be killed in accordance with the Iraqi tribal culture of the Bible, the unlawful origin of retributionism. Then the families should have a vendetta for the next two hundred years.

From an utilitarian viewpoint, the parties' views have the greatest merit. They saw this sentence as advantageous, including the self-dealing prosecutor.

If they really wanted vengeance beyond even stoning to death, he should have been assigned to a therapeutic halfway house for 2 years. That is far tougher than prison time. Prison time is leisure, and if one is not a total fool, one can get through it or use it to advantage. In treatment, one's day is programmed for 12 hours, mostly with self-criticism and the criticism of others. Extremely unpleasant.

Here is something to ponder in loving criticism of the lawyer. This settlement took hours away from lawyers on all sides, including the one on the bench, and from government workers in general, including lots of high school dropouts making $50,000 a year baby sitting thugs in cages. Thus, does not seem right.

Posted by: Supremacy Claus | Jun 5, 2011 12:20:06 PM

not only that SC but the two women who lost their husbands have now had their civil lawsuit paid off plus anything else the court ordered hiim to pay. So they can now go on with their lives absent years of court fights and lawyers expenses. Plus let's not overlook the little GOTCH called house-arrest/probation/parole 2 years is a long time to go without a little GOTCH and then your back in front of the judge to be hammered where verry litte of your civil rights remain.

a perfect example is he is now facing this!

"At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.

Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison."

So not a thing in this means he WON'T end up doing his two years. but in an illinois prison at the same time he's doing the time he ows on the parole violation!

Posted by: rodsmith | Jun 5, 2011 1:22:28 PM

There are several lesson that jump out.

1. This has to be the poster-boy case for the need for mandatory sentencing guidelines and, indeed, statutory minimum terms. "Travesty of justice" does not really capture what happened here. It's intolerable.

2. This is an illustration of why I never became a defense lawyer. No one could say defense counsel here acted unethically or didn't do his job -- and that's the whole problem. His "job" was to pass along a bribe to the victim/widows in exchange for their letters, and thereby do his best to insure that a man who overwhelmingly deserved a long prison term walked away to a life of luxury few INNOCENT people will ever have. His job also included telling the point-blank lie: "'I think he hardly bought his way out of this'." Ha!!

Q: Does Mr. Bogenschutz have any shame whatever?

A: No, but he's now the proud recipient of one helluva fat fee.

3. It's also an illustration of why I DID become a prosecutor. The prosecutors here failed (in the face of (1) bribery and (2) a brain-dead, killer-coddling judge), but I would rather fail taking their side than succeed taking the defendant's. I still have to look myself in the mirror.

4. Lest anyone think that it was an either/or between jail time and restitution -- not hardly. The judge could have called counsel into chambers well in advance of sentencing and said, "My initial thought is that this case demands some sort of jail sentence, but how long the sentence will be may depend, in part, on whether the defendant shows genuine remorse by promptly settling this civil suit with appropriate recompense to the families, or whether he drags his heels. I have not reached any decision here, but that will probably affect my thinking considerably."

5. I don't know whether Florida law permits the prosecution to appeal the sentence, but if so, I don't believe I have ever seen a more obvious candidate.

6. This is so obviously a miscarriage of justice that the judge should be permanently removed. If you can't figure it out any better than this, you don't belong on the bench.

7. Relatedly, this is a superb illustration of why there is a divide between tort law (private remedies) and criminal law (public remedies), and why the wishes of victims in criminal cases are owed respect but not anything like dispositive weight.

Posted by: Bill Otis | Jun 5, 2011 1:36:35 PM

Bill: Specifically, list the benefits of an extended jail term in this case to anyone.

"After an extended prison term, the .... will ... (or will never again...)"

The sole mature goal of the criminal law is incapacitation. The standard of life in a current US prison would be among the highest in the world, better than that of 6 billion people. So, we are arguing about degrees of luxury, not hardship versus luxury. For example, prisoners in the US are fat. You cannot be poor and fat.

Posted by: Supremacy Claus | Jun 5, 2011 4:02:56 PM

SC --

"Bill: Specifically, list the benefits of an extended jail term in this case to anyone."

Just punishment to start with. Two people are dead because this character thought of himself as an above-the-law red hot.

"The sole mature goal of the criminal law is incapacitation."

I cannot agree. The law has at least three other "mature" goals, to wit, just punishment, general deterrence and (where possible) rehabilitation.

Posted by: Bill Otis | Jun 5, 2011 4:13:47 PM

That this case has Bill, SC and rodsmith all going strong already confirms my sense that this case is remarkable and remarkably worthy of extended discussion. I hope federalist and peter and DEJ and John and albreed and the array of anons and lots of other of regular commentors jump in ASAP.

Posted by: Doug B. | Jun 5, 2011 5:50:19 PM

Is there a restitution statute that would have allowed the judge to award restitution to the victims' estates?

Posted by: mike | Jun 5, 2011 8:36:46 PM

Bill, wouldn't such judicial involvement in a plea deal be a blatant violation of the Federal Rules? I can't imagine most state courts are much different.

Posted by: Jay | Jun 5, 2011 10:39:02 PM

i'll give you this one bill!

"4. Lest anyone think that it was an either/or between jail time and restitution -- not hardly. The judge could have called counsel into chambers well in advance of sentencing and said, "My initial thought is that this case demands some sort of jail sentence, but how long the sentence will be may depend, in part, on whether the defendant shows genuine remorse by promptly settling this civil suit with appropriate recompense to the families, or whether he drags his heels. I have not reached any decision here, but that will probably affect my thinking considerably."

I know it's allowed in florida after didn't they do that very think long ago for the idiot who does the girls gone wild videos!

also i'm not sure if florida prosecutors can appeal a verdict. not noticed it before.

Posted by: rodsmith | Jun 5, 2011 11:49:02 PM

Bill: I respect you as an articulate spolesperson for the way the law is today.

Problems:

1) General deterrence: No matter what the case law, punishing the person for social learning purposes, to deter the speculative future crimes of another is unfair, even if the defendant is guilty of an egregious crime. I am going to spank you to scare your little brother into cleaning his room even if your room had been messy. That violates Fifth Amendment procedural process. Specific deterrence of the defendant is permissible.

2) Rehabilitation: Everyone in prison is a rehabilitation non-responder. See Robert Downey or Lindsay Lohan. Let's assume it is a roaring success. It will turn out to work with 60 year olds, in whom doing nothing works as well as expensive programs. . They are too decrepit to commit crimes. Girls can beat them up after laughing at their attempts to force themselves. I learn carpentry skills in prison, and become ultra-honest and reliable. I keep every promise and show up when I say I will. I am a rare contractor. The character portion of the licensing process, the fear of litigation against any employer negligently or intentionally hiring a convicted felon, after someone's breaks in following a job. Those make it impossible to work again. So rehab is a bitter teasing of the felon.

3) Retribution: From Iraqi tribal culture via our Bible, not legal in our secular nation.

Posted by: Supremacy Claus | Jun 6, 2011 12:07:22 AM

Jay --

Since this is a state case, I think that, although you are very likely correct about the Federal Rules, they would not foreclose my suggestion here.

One way to make it more palatable, as against concerns of excessive court involvement in plea negotiations, would be for the judge to start out with something like, "I appreciate your coming in today. The reason I asked you to show up was so that I might discuss with you some preliminary thoughts on the role restitution might, or might not, play in formulating an overall sentence. But I want you to know that if either of you objects to having a conversation like that, or is uneasy with it in any way whatever, I'll stop right now, without prejudice to either side, and be grateful that you took the time to drop by."

Posted by: Bill Otis | Jun 6, 2011 9:38:41 AM

No problems here. The widows' wanted a financial settlement. That was their justice. And while it is important to me, as a member of the public, that a drunk driver get punished for the public's sake, I am much more interested in the family getting their justice. The law is weighed and balanced all the time to reach a result -- this is just another one of those times.

Posted by: = | Jun 6, 2011 10:47:35 AM

former prosecutor, current def atty and civil rts/plaintiff employment disc atty.

Posted by: Marc R | Jun 9, 2011 1:09:23 PM

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