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August 17, 2012

I guess Jim Carrey's Cable Guy would have gotten an life sentence

10870531_detThe quirky title of this post is a riff on the quirky case that resulted in the the rejection of a sentencing appeal by a unanimous Seventh Circuit panel today in US v. Lemke, No. 11-2662 (7th Cir. Aug. 17, 2012) (available here). Here are snippets from the start and body of the short Lemke opinion:

Taking an unfortunate frame from the 1996 movie The Cable Guy, Brian Lemke met a woman while working as a serviceman in her home, pursued her, and eventually left threatening telephone messages for her.  Indicted for violating 18 U.S.C. § 875(c), which prohibits transmitting threatening communications in interstate commerce, Lemke was convicted by a jury and sentenced to 24 months’ imprisonment.  He now appeals only his sentence, which he complains is unreasonable and excessive....

Lemke was charged with two counts of knowingly transmitting in interstate commerce a communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c).  He was convicted of both counts following a jury trial.  The district court set the offense level at 20 with a criminal history category of I for a sentencing range of 33 to 41 months.  It then exercised its discretion to choose a below-guidelines sentence, and imposed a term of 24 months’ imprisonment.  Lemke thinks that the sentence should have been lower yet, and so he has brought this appeal....

Lemke has placed all of his cards on his argument that his 24-month sentence is substantively unreasonable.  He insists that he was provoked ... to send a threatening message, but that he would never do such a thing again.  He asserts that probation would be a sufficiently humiliating punishment because he is an upstanding citizen in his community.  The problem is that these points at best suggest that the district court might also have selected a lesser sentence; they say nothing about whether the sentence the court imposed is unreasonable.  From the standpoint of the appellate court, the actual sentence is entitled to a presumption of reasonableness, and so it was Lemke’s difficult burden to point to some reason to think that this sentence was entirely out of bounds.  For what it is worth, we find it, if anything, to be lenient; it is certainly not unreasonably high. The government reminds us that Lemke’s actions were “disturbing and frightening,” particularly because he continued to scare his victims even after being warned by the FBI; investigators found maps of his victims’ locations in Lemke’s house; and he resisted arrest.  The district court considered these arguments and gave Lemke a below- guidelines sentence.

I have left out the offense details from this excerpt, and the specifics of how Brian Lemke stalked and threatened multiple persons readily explains why the Seventh Circuit reached the conclusion that he was ultimately lucky to get a judge who decided a two-year federal prison term was sufficient.  And yet, I still come away from this case troubled that the social response to this troubled fellow is two years in the federal pen rather than some intense therapy and close supervision in the community. 

Like the Cable Guy, it would seems that Brian Lemke is a disturbed individual who may in fact be a real risk to at some point be violent to others.  But I have no real confidence that sending him to the federal pen for the next few years is going to reduce the risk that he ultimately snaps and does something horrific.  Indeed, I fear his incarceration could ultimately increase his likelihood of recidivism.  And, most critically, I think we all should be troubled that the federal sentencing system, while it has created elaborate set of opaque guidelines designed to help a district judge decide how to sentence Brian Lemke, has no formal or even informal mechanism to examine critically just what this offender's risk profile looks like and what kind of criminal justice response would have the best chance to reduce the risk of future threats or violence by him.

August 17, 2012 at 11:58 AM | Permalink

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Comments

Hopefully Lemke will get the treatment he needs in prison and have a good reentry coordinator who acquaints him with resources available after his release.

Posted by: Gray R. Proctor | Aug 17, 2012 12:29:15 PM

"I think we all should be troubled that the federal sentencing system, while it has created elaborate set of opaque guidelines designed to help a district judge decide how to sentence Brian Lemke, has no formal or even informal mechanism to examine critically just what this offender's risk profile looks like and what kind of criminal justice response would have the best chance to reduce the risk of future threats or violence by him."

Insofar as this represents a criticism of the Seventh Circuit's disposition, I cannot agree. It amounts to a call for de novo review in the appellate court, which is exactly what Booker and its progeny reject.

Nor is it a sound criticism of the trial court, which is hardly bound to view itself as a social agency in the business of genuflecting to whatever "therapy" the defense lawyer can pay some shrink to say Mr. Nicey could use. What he could use is some self-control -- a lesson more likely to be brought home by the system's being serious rather than coddling.

Posted by: Bill Otis | Aug 17, 2012 1:22:14 PM

This is a scary guy. In my humble opinion, there is a thin line between the defendant's behavior and physical harm to his target(s). While the line may not be crossed in all stalking cases, this is the classic case where warning signs must be heeded.

I would have included a provision for electronic monitoring upon release, with geographical restrictions. This defendant was a danger to the community and will be when he gets out. At least, that's the advice I would give the victim if asked. From the victim's viewpoint, she should avoid his presence no matter how many psychiatrists suggest that the defendant is no longer dangerous.

I would also recommend The Gift of Fear by Gavin DeBecker.

Posted by: Stanley Feldman | Aug 17, 2012 2:58:10 PM

Bill, I am not assailing the work of the federal judges in this particular case, but rather the lack of serious social science (or likely follow-up) that attends the modern federal sentencing ritual. (I concur that the judges all did their jobs as the current law requires, but that get to the heart of my worry that the current law has little evidence-based rationale behind what it does in cases like this.)

You assert that "[w]hat [the defendant] could use is some self-control -- a lesson more likely to be brought home by the system's being serious rather than coddling." I share your instinct that the defendant here needs some self-control, but I do not share your (prosecutorial?) confidence that a 24-month prison term is likely bring home this lesson.

All the modern social science I have seen suggests that short prison terms for first offenders tend to increase the risk of re-offending, not decrease it. Given this social science research, the extant (though always imperfect) evidence suggests that the federal sentencing system has now DECREASED public safety as of 2014, while incurring notable extra federal taxpayer costs from 2012 to 2014, by sending this defendant to federal prison rather than explore some alternative.

If you can point to evidence suggesting we are getting public safety value (or other values) for the taxpayer dollars from the prison part of the sentence here, I would change my tune. But for society as a whole, and especially for the victims here, I think our money might be much better spent on GPS tracking, wiretaps and victim restitution than on packing another body into our already overcrowded federal prisons.

Posted by: Doug B. | Aug 17, 2012 3:19:49 PM

The problem is less sentencing than warehouse prisons with no programs, ones that tend to make inmates worse.

Posted by: Paul | Aug 17, 2012 3:26:09 PM

Why, it's simple: prison fixes everything!

Oh, wait...

Posted by: Guy | Aug 17, 2012 5:45:15 PM

Why, it's simple: therapy fixes everything!

Oh, wait...

Posted by: Bill Otis | Aug 17, 2012 9:13:04 PM

Guy --

To get serious about it, no one claims that either prison or therapy fixes "everything," that's just a straw man. If the question is whether prison works to reduce crime, the unarguable answer is yes. If the question is whether a threatening thug deserves to be there, the answer is also yes. And if the question is whether it's up to society to get Mr. Nicey's temper under control, the answer is no. It's up to Mr. Nicey, and best he get to it.

Posted by: Bill Otis | Aug 17, 2012 9:19:27 PM

Like most Americans, Mr. Lemke simply doesn't understand that in the iron-fisted, uber-punitive, Chuck Norris-approved federal system two years in prison is considered a slap on the wrist...or coddling, as Bill would have it.

Most citizens who encounter federal agents on their front porch are ultimately helped to their confession with plausible threats of "up to 30 years" in prison. In fact, Lemke's probably lucky the feds didn't finagle a way to charge him with "domestic terrorism."

Tell me again, exactly how did this become a federal case? Oh yeah...Lemke used a telephone...the ole Commerce Clause ploy.

Doug's right. We took an obviously troubled, creepy guy and threw him in prison to stew for 24 months in rage over a sentence he considers excessively harsh. We can argue about whether locking up Lemke was a good idea. What's indisputable is that Lemke (like most people we pack off to prison) will be back amongst us someday. Treatment and monitoring might not have fixed Lemke's problems; Prison almost certainly will make them worse.

BTW, Bill, social-science literature I read suggests the mass-incarceration policies of the past 30 years played a much less significant role in reducing crime than you would have folks believe. Consider this:

http://www.hlpronline.com/Vol3-2_ClearAustin_HLPR.pdf

Yeah, I know. We ain't much for learnin'...or social science.

Posted by: John K | Aug 18, 2012 11:27:37 AM

John K --

"Most citizens who encounter federal agents on their front porch are ultimately helped to their confession with plausible threats of 'up to 30 years' in prison."

Would you mind producing some documentation for your claim of "most?" Thanks.

"Tell me again, exactly how did this become a federal case? Oh yeah...Lemke used a telephone...the ole Commerce Clause ploy."

Take it up with the courts. Oh, wait, you did take it up and lost. Think it might be time for a complaint that's less than 40 years old and a 100% loser?

"Treatment and monitoring might not have fixed Lemke's problems; Prison almost certainly will make them worse."

That's utter speculation, right? Yup. OK, here's more plausible speculation. Have the prosecutor visit this hoodlum in the slammer and tell him that if he tries it again, he'll do ten years. He is an adult and he is to control himself. If he won't, we will. This therapy-is-wonderful melody is just defense lawyer pablum.

"Bill, social-science literature I read suggests the mass-incarceration policies of the past 30 years played a much less significant role in reducing crime than you would have folks believe."

Which is exactly the problem with the highly selective social science literature that YOU read.


Posted by: Bill Otis | Aug 18, 2012 5:47:05 PM

Did you read the linked study or just dismiss it because you're not open to having your own speculative notions debunked?

Posted by: John K | Aug 18, 2012 9:07:36 PM

I read enough of it to see that the authors very carefully avoid actual numbers in favor of vague and subjective stuff like, "the effect of incarceration on the crime rate is small."

Q: And what is "small?"

A: Whatever some pro-crime academics want us to think it is.

Very impressive. And now that I've answered your question, would you mind answering mine -- you know, the ones you whistled past? Or were you just too busy writing your story about how Jerry Sandusky got screwed by Nazi prosecutors? I mean, they are Nazis, right? Why not? Why jump off the ship now?

Posted by: Bill Otis | Aug 18, 2012 9:34:16 PM

@ Bill:

Well, you deride straw-men, then seek to trot out at least one of your own. Prison pretty clearly doesn't fix everything, and neither does therapy, but no one is suggesting that it's up to society to fix Mr. Lemke's problems. Mine is to point out that, at least ostensibly, there is a middle-ground, and one that doesn't involve sending people away for multiples of years based, apparently largely, upon fears of what they might do in the future (e.g. future-crime). Should Mr. Lemke be punished? Absolutely. Is prison the only and sole way we have to punish people? Last I checked it wasn't. Prison, and multiple years in it, seems to have become our main tool for trying to correct people's behavior, and given that most everyone who comes out of prison goes back in within a few years, it doesn't seem to be working too terribly well, does it?

And as for the discussion about prisons working to reduce crime -- I'll be happy to do that tango with you again. We can start by talking about how ~80% of the reduction in crime attributable to mass-incarceration has been for low-level drug and property offenses, not violent offenses. If you think about it, us sending everyone to prison for eons upon eons really does mean that it's up to the rest of society to take care of their problems for them. After all, we're the ones paying for it.

@ John:

"Like most Americans, Mr. Lemke simply doesn't understand that in the iron-fisted, uber-punitive, Chuck Norris-approved federal system two years in prison is considered a slap on the wrist...or coddling, as Bill would have it."

John, you made me spit-take my coffee onto my monitor.

Posted by: Guy | Aug 20, 2012 4:11:26 PM

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