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February 10, 2013

Guest post on Amish sentencing: "A Travesty in Cleveland"

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended this past Friday's high-profile federal sentencing of the Amish defendants involved in the high-profile beard-cutting attacks in northern Ohio.  I am pleased to be able to now reprint his lengthy guest-post on the sentencing proceedings:

Living in northeast Ohio, I have encountered Amish on several occasions, usually on the road behind their horse-drawn buggies, but never in a courtroom.  Yesterday I had the opportunity to sit through perhaps the most surreal sentencing I will ever encounter. Reminiscent of the movie “Witness,” the followers of Samuel Mullet, Jr. sat on the right side, with the women wearing kerchiefs, while victims and their supporters sat on the left with the women wearing bonnets — the only apparent distinction between the two groups. The men, all in similar attire, had large, solid hands, built up from years of farming, some with flecks of mud on their clothing.  They sat quiet, subdued, and unlike the “English” present, did not speak among themselves.

These obviously were simple, passive people, involved in a serious and unfortunate dispute.  A dispute that resulted in shameful and abusive conduct by Mullet and some of his followers against other Amish: beard and hair cutting, which held religious symbolism. This conduct, while criminal, was not tantamount to the seriousness reflected in the severity of the sentences handed down.   That Mullet received a 15-year sentence for ordering the assaults, and that his remaining followers received from a year-and-a-day to 7 years, which will result in effectively orphaning a few dozen children, was the most surreal part of yesterday’s sentencing.

Given the severity of the sentences the government (incredulously sought) — in Mullet’s case, life — it was surprising that statistics were not raised during the hearing.

First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced.  While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times.  Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year.  Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases.  In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months).  While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence.  Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?

Finally, Mullet is 67.  A 15-year sentence still effectively is a life sentence for him.  With an already over-crowded federal prison system and growing, Mullet’s time will be even more onerous than most in light of his age and most glaringly, his cultural and religious background, will make him highly susceptible to abuse.  Further, his age will impose additional financial burdens on the BOP, with some estimates as high as $90,000 per year. Is this an appropriate use of the public fisc?

This was an awful case from every perspective.  Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation.  Clearly, the courts of Ohio could have (and should have) addressed this matter.  The sentences handed down merely have compounded the travesty of this prosecution.  While Judge Polster did an admirable job in detailing his reasoning — especially noting the irony of the Amish defendants trampling the very Constitution that makes their lifestyle possible — but for the absurdity of a federal sentencing system that has for years encouraged the judiciary to hand out multi-year sentences as if they are candy, one wonders how Judge Polster would have sentenced unencumbered by a sentencing regime that clearly did not contemplate the facts of this case and has otherwise run amok.

The federal government not only chose to prosecute these assaults as if they were kidnappings but hate crimes.  While technically hate crimes given the religious motivation for the assaults, the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the statute was intended to address, while the punishment, ironically, was.  Indeed, the hate crime statute upon which the defendants’ convictions rested — 18 U.S.C. s. 249 — was enacted as part of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  Both Shepard and Byrd were the victims of the most atrocious and violent hate crimes in recent memory — Shepard tortured and left to die tied to a fence in Wyoming because of his sexual orientation, and Byrd gruesomely dragged to his death and decapitated behind a pick-up because of his race.  Sentencing these Amish assaults as if they were equivalent to the offenses suffered by Shepard and Byrd is an affront to their memories.  Hopefully the Sixth Circuit will rectify this manifest injustice.

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Comments

An interesting and well written (in my lay opinion) read ; true whether you agree with its author.

I’ll type more on the ƒaceßook page .

Nemo Me Impune Lacessit

Posted by: Anon. #2.71828 | Feb 10, 2013 12:43:47 PM

The cult criminal on the bench is 100% responsible for allowing the farce to proceed.

I find it ironic. What is essentially a harmless prank to enforce cult orthodoxy is severely, and ridiculously punished by members of a criminal cult enterprise, the lawyer profession. It brings ridicule and opprobrium on its stupidity.

Its stupidity knows no bounds, and grows as the ranking of the school rises. These lawyers believe minds can be read, and must be read to prove each element of a crime (plagiarizing the catechism analysis of mortal sin, Sections 1857 to 1861). The future of rare accidents can be foreseen. The standards of conduct must come from a fictional character. Why? To be objective, of course. Yet, their high school World History course has been erased for the real meaning of the central word of the law, reasonable, a technical term from Scholasticism. None of these geniuses remembers, the reasonable person is the unnamed Jesus the Christ, yet another made up, fictional character, himself.

So this spectacle of stupidity is really the persecution of a competing cult by the biggest and most powerful cult of all. It has totally infiltrated the three branches of government, and nothing short of violent arrests, trials and summary executions en masse will get rid of this pox from government.

Posted by: Supremacy Claus | Feb 10, 2013 12:45:55 PM

Mr. Allenbaugh may slightly overstate his case, but, overall, his observations are compelling, indeed unarguable.

Why indeed did the feds go after this case? As Allenbaugh notes, and no one can seriously dispute, the feds knew full well that "the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the [federal] statute was intended to address..."

DOJ knew this better than anyone. And there is also the question of why the case, if it were to be done by the feds at all, was run by DOJ and not by the local USAO? Why was Washington involved?

Mr. Allenbaugh's most telling sentence is this: "Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation."

Just so.

When this case was discussed extensively on an earlier thread, not a single commenter could come up with a plausible reason that this should ever have been a FEDERAL case. Now, Mr. Allenbaugh, a nationally known federal sentencing expert, adds his voice to the bafflement.

What is the one thing that stands out about this case? Its religious coloration. Mullett is a member of a small, odd, insular and politically powerless Christian denomination (or cult, as some might say). Yet even in the face of the complete absence of any other explanation of why Washington went after this guy, my suggestion that it had something to do with hostility to Bishop Mullett's views was dismissed out of hand.

Although I do not speak for him, it would seem that Mr. Allenbaugh joins me in waiting for some sensible explanation for this otherwise inexplicable federal frolic to show up.

Posted by: Bill Otis | Feb 10, 2013 1:33:59 PM

I note that Doug had a huge beef with your earlier C & C post. I find it interesting that Doug will try to take issue with you, but uncritically pass along one of his colleagues' fantasy of a guy in an orange jumpsuit engaged in a swearing contest with cops in front of a jury. Some serious dishonesty there---and Doug stood mute.

If he's going to call people out, let's see him address why he was mute earlier.

Posted by: federalist | Feb 10, 2013 3:41:02 PM

Bill Otis

"...waiting for some sensible explanation for this otherwise inexplicable federal frolic to show up."

Penalties are fixed before the fact by lawmakers for crimes, which is a time when the problem is not fully knowable. They are intended to forestall conduct of a particular kind in the future. Penalties are imposed by judges after the fact to maintain the credibility of the State's earlier threat.

Punishments are set after the fact by judges for criminal offenses, but within a range that was determined by lawmaker before the fact. In other words, the problem unfolds over time.

Crimes are wrong; offenses are bad. A "criminal offense" is a modifier-head conceptional combination. Criminal offenses are both wrong and bad. How bad has to be determined after the fact.

Penalties have become known as "mandatory minimums" because lawyers generally do not differentiate between crimes and offenses, and between penalties and punishment.

Penalties make sense in a theoretical sense, but they are of questionable value as a workable deterrent. There is nothing in this case to suggest that the feds misused their discretion for religious reasons. In fact they were trying to forestall hate crimes of a particular kind at some time in the future. The overreach here was on the part of the lawmakers. They too did not distinguish between penalties and punishments.


Posted by: Tom McGee | Feb 10, 2013 5:20:25 PM

Bill,

While religion might be a distinguishing factor, the problem is that religion only has some explanatory force as the motivating factor if one can make a plausible case for its explanatory force. Otherwise, it is just as plausible (and I think equally doubtful) that this prosecution was motivated by the fact that, unlike most other cases, these crimes were committed by the Amish, or that these crimes involved beard-cutting (among other harms). I won't rehash them all here, but BHC had a lot of very serious (and I think damning) questions about how this plausibly fit into an anti-religion agenda, or is even anti-religious. It is entirely unclear how it could be part of any actual plan, or what that plan is, given that such prosecutions are so very rare (i.e., what does a once- or twice-in-an-administration prosecution really accomplish to pursue some agenda). It is unclear how fair deals with 15 of 16 defendants, all of whom are religious, are consistent with that religious bias. It is unclear how the protection of dozens of victims of religious persecution, and ensuring that those victims can freely practice their religion, is consistent with hostility. Most importantly, it is unclear how seeking a harsh sentence against this single, unique defendant harms religion. I'm not even sure I understand how it has any effect on religion. It has effect on this man--and this man only--who did something criminal. It has no effect on any other person, religious or otherwise, who does not engage in criminal activity in the course of practicing religion or anything else.

As for federal overreach, this is really nothing new. Thousands of CP and drug cases that used to be local matters are now handled by AUSA's. In the Bronxmeyer case, for instance, involving a sports coach and some of his students, I'd say the only reason the matter went federal was a combination of a great press release and a substantial sentence. Maybe in DDC and SDNY are the feds still selective (in SDNY, they generally prosecute CP bigwigs only, whereas in NDNY, they have a policy of taking all CP cases from the locals, and very, very rarely defer to state prosecutors), but in others, they are hungry for cases, especially where there is something press-worthy. I don't see this as unique on those terms, as the press appeal of these cases is large. Indeed, given that oppression of religious expression was involved, I'm not surprised the feds would want to get the press. I don't think these worthy reasons for making federal cases out of everything, but I also don't see them as unique to this one.

I don't know why the feds sought such a harsh sentence (though I suspect there was a great danger of recidivism given this fellow's ideological commitment, and also the matter of significant uncharged conduct such as the sex under the guise of counseling and the spankings). I don't think these should get such lengthy sentences, most conservatives tend to disagree and feel that there is no punishment too harsh for sexual crimes, as does the DOJ. To me, that is more plausible, as it is something the DOJ has acted on so many times in the past.

AO

Posted by: AnonymousOne | Feb 10, 2013 6:05:52 PM

"...there is no punishment too harsh for sexual crimes, as does the DOJ..."

Correct. They are all feminists traitors to the nation, seeing sexual misconduct as the grand road to the witch hunt of the productive male. The DOJ feminist lawyers are themselves a hate group. They are not even a sincere hate group. Their hatred of the productive male is always a masking ideology for the crushing by big government of all competing sources of moral authority. They are to 2013 what the KKK was to 1913. Both are the terror arms of the Democratic Party. One used race. The other uses gender. The aim is always, grow big government and crush all competing and far more successful competitors, males, religion, schools, corporations, the military. These are always far more effective than the government at reaching the only purpose of government, safety.

The greatest civil rights figure was not Martin King. It was Stokely Carmichael. His car was stopped by the KKK. The KKK was a fraternal organization founded and led by lawyers. They got the KKK absolute legal immunity for their maniacal genocidal rampages. The thousands of lynching without prosecutions were for the purpose of seizing the assets of rich blacks and giving them to lawyers. Stokely Carmichael came out of his car pointing a shotgun. They left. That watershed event was the turning point in the fight for equality, not the March on Washington. There would be no more laying down in the face of lawyer agent bullying. The lawyer enemy understands only one thing, violence.

I predict the defunding and plunder of the assets of the defendant and of his church will soon follow. Most of those assets will go to lawyers. Here comes the KKK of 2013, except it now controls the three branches of the government.

Posted by: Supremacy Claus | Feb 10, 2013 7:58:26 PM

Fundamentally, the DOJ simply perceives the facts of the case differently than most people. They see Mullet as another Yearning for Zion type and his "cult" in the same light as the fundamentalists in the Mormon church. So in their minds Mullet is just another patriarchal male out to use religion as an excuse to manipulate, control and oppress women.

I think their perception is inaccurate. It is based on a basic unfamiliarity with Amish mores and religious outlooks. Mullet is not Warren Jeffs. He's not even in the same universe, religiously speaking. But the DOJ thinks he is and so that's why the fix is in. The beard cutting is just the fig leaf they need.

Posted by: Daniel | Feb 11, 2013 12:20:03 AM

all this tells me!

"First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced. While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times. Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year. Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases. In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months). While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence. Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?"

out of a 300,000,000 plus population they only managed to use these statues a few 1,000 times is that they are a waste of money and should be removed.

As for the stupidity of filing them in this case. Maybe someone should cut a few beard's of the DOJ and see if any brains are behind them!

Posted by: rodsmith | Feb 11, 2013 3:13:46 AM

AO --

I wrote a response to your note and posted it, but the post didn't take. I don't know why this is. Maybe I'll try to put it up on a different thread.

I thank you for you thoughtful questions.

Posted by: Bill Otis | Feb 11, 2013 3:18:25 AM

I had the same problem, Bill, when trying to reply to federalist; not sure why.

Meanwhile, federalist, are you complaining about my reprinting of Michelle Alexander's op-ed last week? I took issue with Bill Otis's C&C post about the Amish case because it seemed so very inconsistent with (1) his frequent advocacy here for making the severe FSG mandatory again, and (2) his apparent affinity for long prison sentences for incapacitation of anyone likely to commit future crimes. In the Mullet case, these principles would suggest lead Bill would praise DOJ's tough sentencing posture, but instead he lodged a seemingly quite silly attack on DOJ being anti-religious when what they did here was take the Amish victims' harms inflicted by Mullet et al. very seriously.

The whole point, which I suppose should go without too much saying, is that Bill's purported punishment principles quickly melt in the face of his desire for political posturing. I know he (and you, federalist) will often make the same point concerning folks on the left (especially when they urge severe punishment for defendant they disdain). I do not here mean to defend folks on the left (or attack those on the right); rather, I just like to highlight that most -- perhaps including me --- are often quick to betray their asserted punishment principles when it serves their personal politics.

Of course, perhaps this is just a variation on what Bill was claiming -- i.e., he seem to think DOJ is being "extra tough" here because it serves "anti-religion" politics. However, the facts on the ground contradict Bill's claims because (1) the FSG that Bill praises are almost always "extra tough" and the FSG best explain the sentence recommendations in this case, (2) the feds here seem to be protecting/respecting religious interests by vindicating the unique harms suffered by Amish victims, and (3) DOJ was actually not "extra tough" on 15 or the 16 Amish defendants.

Meanwhile, I have not seen Michelle Alexander's inconsistency on display, nor is she a regular commentor in this forum. You are, of course, welcome to criticize any and everyone (within respectable limits) whose work I link/note. But, especially because comments are harder to post on C&C than here, I was eager to bring Bill's comments on this notable case over here for further explanation and insights by him and others.

Posted by: Doug B. | Feb 11, 2013 9:06:01 AM

The reason for the Feds taking this case is simple.

The Federal government is never static. It is either shrinking or growing. Of course, it almost never shrinks because that would reduce the power of Federal bureaucrats and support, God forbid, Federalism.

The fact of the matter is that the Federal government has become a flesh-eating bacteria that will dine on the flesh of this Republic and its citizens until its death. I read somewhere that Steven Dettelbach has been quoted as saying we, "Taste like chicken."

Posted by: TarlsQtr | Feb 11, 2013 9:06:58 AM

Doug:

"the feds here seem to be protecting/respecting religious interests by vindicating the unique harms suffered by Amish victims,"

So they claim but that claim doesn't pass even the most superficial analysis. First, what is so unique about the harms they suffered? Is it because the Amish are a "unique" religious sect? It certainly can't be because they practice a religion, period, because religious attacks are by no means unique.

BTW, I agree with your analysis that Bill is out to lunch on the idea that the DOJ is engaged in an attack on religion. That might play well with their base over at C&C but it's not convincing. However, it is equally implausible to defend the DOJ on religious grounds. A religious context might explain why the DOJ's took on this case in the first instance but it can't explain the disproportionate punishment the DOJ sought and achieved.

In the end, I don't agree with BO's explanation for the DOJ's behavior in this case but I agree with his sense that their behavior offends common decency.

Posted by: Daniel | Feb 11, 2013 11:54:32 AM

Thanks Bill.

I've also had posting issues. For me, I find that mine will get rejected if they are too long, which length seems to change regularly. I strongly recommend you write any comment in Word, and then copy and past here. That way, you won't lose the comment (as I have, frustratingly, on more than one occasion). Also, try breaking it into smaller parts (that's why I often post 3 in a row).

Maybe one day we can compare stats about how often we guess the word scramble incorrectly. I'm convinced they keep humans from posting just as often as they keep robots from doing so.

AO

Posted by: AnonymousOne | Feb 11, 2013 2:44:02 PM

AnonymousOne --

"BHC had a lot of very serious (and I think damning) questions about how this plausibly fit into an anti-religion agenda, or is even anti-religious. It is entirely unclear how it could be part of any actual plan, or what that plan is..."

I don't recall saying it was part of a plan. I said something very different: That it's the opportunistic outcropping of an attitude.
In addition, I don't think it's out of line to wonder -- when the feds, in what no one thinks is a legitimate federal matter, reach out to prosecute and imprison people WHO ARE DEFINED BY THEIR RELIGION -- whether the prosecution is anchored by any legitimate federal interest.

"...given that such prosecutions are so very rare."

They're so very rare because the behavior (religious splinter group violence v. religion) is rare, in this country at least -- not because the Administration is fond of religion.

"It is unclear how fair deals with 15 of 16 defendants, all of whom are religious, are consistent with that religious bias."

The biased would prefer that their bias not be on conspicuous display. Given the lesser roles of the 15, trying to hammer them as well as Mullett would be even more of a PR disaster than this case already has been for the feds. And I repeat: Why is this a federal case at all? Mr. Allenbaugh, long-time practicioner, is mystified.

"It is unclear how the protection of dozens of victims of religious persecution, and ensuring that those victims can freely practice their religion, is consistent with hostility."

I question your use of the phrase "religious persecution," which normally refers to STATE persecution. That was not what started this case. It's about one group of religious believers vs. another. And when the federal government needlessly jumps into a local case to go after 16 people most notable ONLY for their religious beliefs, it's fair to wonder whether the feds' attitude toward those beliefs played a role in a prosecution that, as Mr. Allenbaugh rightly puts it, "defies explanation."

Posted by: Bill Otis | Feb 11, 2013 3:25:57 PM

AnonymousOne (cont'd) --

"Most importantly, it is unclear how seeking a harsh sentence against this single, unique defendant harms religion. I'm not even sure I understand how it has any effect on religion. "

Neither am I, which is why I never claimed it HAD THE EFFECT of harming or affecting religion. Intent is different from results.

"As for federal overreach, this is really nothing new."

I must disagree. Its novelty is the main reason by far it's received so much publicity. The normal federal criminal case (which is concentrated in drugs, immigration, firearms and fraud -- not CP, much less beard-cutting) does not seek anything like a life sentence for an offense of this serious but not earth-shaking gravity.

"In the Bronxmeyer case, for instance, involving a sports coach and some of his students, I'd say the only reason the matter went federal was a combination of a great press release and a substantial sentence."

Is there documentation for that view?

"Maybe in DDC and SDNY are the feds still selective (in SDNY, they generally prosecute CP bigwigs only, whereas in NDNY, they have a policy of taking all CP cases from the locals, and very, very rarely defer to state prosecutors), but in others, they are hungry for cases, especially where there is something press-worthy."

It is a commonplace among some defense lawyers that AUSA's are amoral, publicity-seeking cutthroats, indicting innocent or quasi-innocent people on draconian charges for the glee (or press release) of it.

I worked among these people for 18 years, and would be perfectly willing to testify in court that such a characterization is fiction. I have significant problems with the Administration's motives in this case, but I have not made charges against it anywhere near as sweeping a the ones you certainly seem to embrace. If I have a conspiracy theory, you seem to have a devil theory.

Posted by: Bill Otis | Feb 11, 2013 3:31:03 PM

AnonymousOne (part III) --

"I don't see this as unique on those terms, as the press appeal of these cases is large. Indeed, given that oppression of religious expression was involved, I'm not surprised the feds would want to get the press."

Oh, they've gotten press alright, all of it negative. It would seem that my suspicions about illicit motivation are much more widely spread than your view that the feds were standing up for "religious expression."

BTW, were they standing up for relgious expression when they sent an FBI agent to "talk to" Rev. Terry Jones to dissuade (some might say intimidate) him from his expression against what he views as the anti-Christian themes of the Koran? It actually looked like squelching the First Amendment to me.

"I don't know why the feds sought such a harsh sentence..."

Then why are you as sure as you seem to be that I'm wrong? I worked with the feds, both in Main Justice and the USAO, in administrations of both parties, and in both career and political positions. I think I know the culture pretty well.

"...(though I suspect there was a great danger of recidivism given this fellow's ideological commitment, and also the matter of significant uncharged conduct such as the sex under the guise of counseling and the spankings)."

But none of that explains federalizing the prosecution, as the state sentencing jurisprudence almost surely allows the judge to account for those same things.

Beyond that, I'm surprised at how much enthusiasm I now see for the consideration of uncharged conduct at sentencing. Before this case came up, such consideration was virtually universally condemned on this board. Why the sudden change?

Posted by: Bill Otis | Feb 11, 2013 3:34:37 PM

AnonymousOne --

Many thanks for your suggestion about cutting the post into parts. The suggestion was the ideal (and effective) cure for my longwindedness.

Of course, given my disagreements with you, you might view it as another instance of "no good deed goes unpunished," for which I could scarcely blame you.

I have to tell you what a pleasure it is to have a serious, substantive, knowledgeable and obviously experienced interlocutor -- someone who has lots to say about ideas and analysis and very little to say about persons.

You are a breath of fresh air here. I hope you stay.

Posted by: Bill Otis | Feb 11, 2013 3:40:54 PM

The fact is the defendants were not motivated by the religion or religious activities of the victims when they cut their beards and hair. This was part of the false narrative the government was very successful at selling in this case. Most would be shocked to learn that 3 out of the 5 incidents involved estranged family members, two sets of parents and one brother-in-law. One of the incidents not involving a family member involved a feud with a neighboring Bishop for his mistreatment of a Mullet family member who lived in his Amish community. The week before the Bergholz Amish cut this Bishop's beard the Bishop had ordered the Mullet family member to return a horse and buggy (worth over $6000)his father Samuel Mullet had gifted to him. The other non-family member victim was a Bishop that had earlier sat on a committee of Bishops that had reversed some shunnings imposed by the Bergholz church district back in 2006. Samuel Mullet's son Johnny who led this beard cutting attack believed the reversal of one of the shunnings eventually empowered a member of one of the shunned families to use the Jefferson County Sherrif to take Johnny sister's children from her with his SWAT team during the custody dispute.

Posted by: ebryan | Feb 11, 2013 10:40:15 PM

previous post continued.

The loss of the children in the custody dispute in 2009 caused the Bergholz Amish community to take a spiritual inventory. They believed that if God was with them Sam Mullet's daughter's children would not have been taken from them. In an effort to recommit themselves to their faith many of the men living in the Bergholz Amish community acknowledge their sinfulness and voluntarily cut their own beards and hair because they believed they were living as hypocrites. Some women also cut their hair for the same reason. This is also the period in which community members spent time in chicken coops to further spiritual reflection through self denial. The spankings were ritualistic tappings to keep angry community members from engaging in fisticuffs. The evidence at trial proved that Samuel Mullet was not responsible for any of these practices, but were the product of community members in their desire to fully commit themselves to their faith.

Posted by: ebryan | Feb 11, 2013 10:47:58 PM

previous comment continued...

The spiritual renewal process in Bergholz lasted from the fall of 2009 until the summer of 2010. During this time, many other Amish communities chose not to fellowship with the Bergholz Amish because they thought the Bergholz Amish had really turned their backs on their faith. In fact, when some of the Bergholz men allowed their beards to be cut, many Amish outside of Bergholz believed the Bergholz Amish community was turning "English". The catalyst for all of the beard cutting attacks was a chance encounter between some Bergholz members and their estranged father at a machine sale in Geauga County. During this encounter the father confronted his son about how he was living his life in Bergholz. He told his son, "if God was with you, you would have never cut your beard....if God is with me, my beard will never be cut." A couple weeks later, his son and his brothers and their wives traveled to Trumbull County and cut their father's beard and mother's hair. As they were leaving, the son who was confronted by his father at the machine sale yelled, "God is not with you!!God is not with you!!"

Posted by: ebryan | Feb 11, 2013 10:58:37 PM

previous comment continued...

Word of the beard cutting spread like wild-fire through the Amish "grapevine." This incident caused a couple other estranged family members reached out to their family members in Bergholz. These individuals were invited to visit Bergholz and when they did their beards were cut as well. On October 4, 2011 the two Bishops beards were cut. No evidence was introduced that Samuel Mullet ordered the beard cuttings. This was a fact acknowledged by he prosecution. The government argued that since Sam Mullet was the Bishop of the Bergholz community and he had the power to stop the beard cuttings and did not he had Pinkerton liabilty for the actions of the otehrs. The defense asked the court to instruct the jury on religious bias. The judge rejected the defense request and instead adopted the government's instruction that the defendants could have multiple motives for their actions, but as long as a "substantial" motivation was because of religion the jury could find the religious motivation element of the hate crimes statute.

Posted by: ebryan | Feb 11, 2013 11:07:29 PM

previous comment continued...

At sentencing, the court again sided with the government when it came to defining the kidnapping enhancement to the hate crimes statute. The defense stated that the government should have to prove the elements of federal kidnapping since it is federal kidnapping that carries with it a statutory maximum sentence of life and it was the federal kidnapping statute for which the federal kidnapping guideline was promulgated. The government argued that it should only have to prove "generic" kidnapping, which required merely restraint during the commission of another felony. Notwithstanding the fact that federal kidnapping is a substantively more serious offense than "generic" kidnapping, the court adopted the government's kidnapping instruction. The bottom line is both the substantive hate crime statute and the kidnapping sentencing enhancement were watered down versions of the law. This made the convictions almost a surety and the fact that the defendants would face a statutory maximum sentence of life and guideline ranges from 20 years to life.

Posted by: ebryan | Feb 11, 2013 11:17:36 PM

“It is a commonplace among some defense lawyers that AUSA's are amoral, publicity-seeking cutthroats, indicting innocent or quasi-innocent people on draconian charges for the glee (or press release) of it.”

I don’t believe the vast majority of AUSAs to be immoral, nor do I believe that they indict innocents. Very few federally indicted defendants are innocent (though it does happen). But that does not detract from my claim that DOJ regularly prosecutes cases for publicity or to seek draconian sentences (by regularly, I don’t mean to say this is a majority of the prosecuted cases).

It is not immoral to seek a draconian punishment unless the punishment is unjust. In the CP arena, many AUSAs outside of the major Northeastern cities view such sentences as just, and thus there is nothing immoral, to them, in overreaching to bring them into federal court where they might have just as easily, and more naturally, be prosecuted in state court. I disagree on the justness of these sentences, but I don’t believe these AUSA actually lack a genuine (though on my view mistaken) belief in their justness. I am not seeking to impugn moral integrity writ-large. My point is that AUSAs regularly seek state-prosecutable activity if a higher sentence can be obtained in federal court and there is a basis for federal jurisdiction. Such overreach—a descriptive term—is not new. In a number of districts, for instance, there are agreements with local prosecutors to refer all CP cases to USAs for rejection first. NDNY, as an example, rejects almost nothing. SDNY, on the other hand, takes only the most culpable defendants. The parties involved don’t hide this fact, and at times have touted it. (Only in Arizona is there significant exception to this practice, as in state court there is a mandatory minimum 10-year sentence per image, and multiples must be served consecutively. There, the USA prosecutes relatively few CP cases.)

Posted by: AnonymousOne | Feb 11, 2013 11:29:38 PM

The issue is related with respect to publicity. I am not saying that the feds will indict someone merely for the publicity. I am saying, however, that given the choice between state and federal prosecution, feds may be more likely to take or actively seek a case that is sexy or press-worthy. After all, if someone is going to get the juicy cases, why not me? The SDNY is a good example. The SDNY gets its prestige, and is a breeding ground for potential politicians and major law firm partners, because it looks for the sexiest cases. People join the office hoping to handle Wall St. fraud and mafia prosecutions, not immigration and CP. The office actively seeks out such work, including that which they Manhattan DA’s office would otherwise get (and is often at war with them for such cases). USA’s are not immune to the pressure to produce, and get noticed. Nor is this surprising given many of their latent or patent political ambitions. Indeed, every USA has a press officer, some extremely active. Nobody has hid their interest in press, good press, and lots of it.

The point: draconian sentences and publicity seeking are things that even moral, good-natured people do, and that, I believe, the DOJ often does. They are, to my mind, better default explanations for “overreach,” and for this prosecution, than others—especially religious animosity—unless there is countervailing evidence.

“The biased would prefer that their bias not be on conspicuous display. Given the lesser roles of the 15, trying to hammer them as well as Mullett would be even more of a PR disaster than this case already has been for the feds.”

This could be true, but is both (1) unfalsifiable and (2) consistent, if not more so, with a non-religiously-discriminatory purpose.

Posted by: AnonymousOne | Feb 11, 2013 11:30:08 PM

“I question your use of the phrase "religious persecution," which normally refers to STATE persecution. That was not what started this case. It's about one group of religious believers vs. another.”

It’s about one group of religious believers committing crimes against, and infringing on the religious practices, of another group. Thus, it is religious criminals vs. religious victims. The DOJ has chosen to prosecute the religious criminals, not the religions victims. Why should that raise a presumption of religious animosity? The DOJ is thus, at least facially, acting to protect the practice of religion, and only to inhibit the practice of criminality. Much as, in prosecuting a priest-molester, it is acting to protect his victim.

“BTW, were they standing up for religious expression when they sent an FBI agent to "talk to" Rev. Terry Jones to dissuade (some might say intimidate) him from his expression against what he views as the anti-Christian themes of the Koran? It actually looked like squelching the First Amendment to me.”

I agree that they certainly were not standing up for religions expression. What they did was wrong. But I don’t yet believe that the act was an expression of anti-Christian sentiment. I think it was an improper and misguided attempt to protect troops. Still wrong, but a big difference in terms of this discussion. I should also note that there has been little attention paid in this post to the vast number of cases the administration has, and continues, to prosecute against Muslims accused of terrorism.

Posted by: AnonymousOne | Feb 11, 2013 11:30:34 PM

previous post continued...

The government's claims that they were seeking to defend the religious liberty rights of the victims in this case are disingenous. The feds took this case from the state because the case was attracting world-wide attention. In the process, many miscarriages of justice occurred, not only against the defendants, but the victims as well. Some of the victims tried to adhere to their centuries old tradition of "turning the other" cheek, only to be brought involuntarily before the Grand Jury. It is clear that many family members who were perhaps temporarily estranged, now will be permanently estranged because of the schism caused by this case. The true victim of religious persecution in this case was Sam Mullet. He was maligned and villified as "an iron fisted cult leader" when in reality most of the unorthodox religious practices were the brain-child of other Bergholz community members. As for the sex abuse allegations, none of the women claimed to have been "sexually cleansed" said it was true. The testimony at trial from a daughter-in-law claiming that Samuel Mullet pressured her sexually had nothing to do with the offense conduct in this case. This daughter-in-law left the community in 2008. The first beard cutting incident did not occur until 2011. The bottom line is Sam Mullet was convicted and sentenced to an outrageously high sentence, not because of the beard cuttings, but because the government was successful in convincing first the jury and then the judge that Sam Mullet was a bad guy.

Posted by: ebryan | Feb 11, 2013 11:31:14 PM

Why are they prosecuting this case, and seeking such a harsh sentence? I’m not sure. Daniel suggested that “in their minds Mullet is just another patriarchal male out to use religion as an excuse to manipulate, control and oppress women.” That is possible. It is consistent with a good-faith, but mistaken, understanding of this culture, rather than some general hostility to religious people. It is the kind of mistake that prosecutors have made, or that regular folks often do in dealing with unfamiliar cultures. I suspect that publicity and uncharged conduct also had a role. Uncharged conduct should not play a role, but I suspect it did. It is wrong, but different than religion. Again, I am willing to accept religious hostility was the motivating factor, but only if its plausible. For me at least, it is not yet. That doesn’t mean it wasn’t the motivating factor.

“I have to tell you what a pleasure it is to have a serious, substantive, knowledgeable and obviously experienced interlocutor -- someone who has lots to say about ideas and analysis and very little to say about persons. You are a breath of fresh air here. I hope you stay.”
Thanks, Bill. I really appreciate the very kind words, and I offer the same to you. It is always enjoyable to engage in serious, collegial, discussion.

AO

Posted by: AnonymousOne | Feb 11, 2013 11:31:23 PM

Doug, you're being intellectually dishonest. First off, it is possible to believe in mandatory FSGs and MMs and think that certain prosecutions are a waste of resources and cruel. I believe in a tough criminal code and harsh punishments, but I have vigorously argued for clemency and prosecutoral discretion at times on these pages. In fact, if you are going to believe in a harsh punishment regime, I think you have to believe in clemency and not prosecuting certain people.

As for your weak defense for not saying anything about Prof. Alexander, (1) I never accused her of being inconsistent and (2) I pointed out that her fantasyland of guys in orange jumpsuits in swearing contests with cops in front of juries was pretty far from reality. You had nothing to say, and it wasn't like I wasn't clear.

Posted by: federalist | Feb 12, 2013 10:02:58 AM

Ebryan, thanks for the perspective. Ethnocentric thought sometimes gets in the way of clear analysis.

Posted by: beth | Feb 12, 2013 1:19:20 PM

AnonymousOne, Doug and Daniel --

Having read and considered your posts, I think you are right and I was, if not wrong, taking a position too strong for the supporting evidence to justify as stated.

I remain convinced that this Administration is hostile to Christianity and Judaism (although not to all religion generally, which was part of my overstatement). The Administration (and I use that word advisedly, as opposed to DOJ) has done one thing and the next opposed to what Christianity supports. It's getting sued (with no little success) by the Catholic Church for its birth control mandates; it has refused to defend DOMA, which was passed largely to embrace the Christian (and dominant) view of marriage, and which, for whatever one might think of it, is at the minimum capable of a plausible Constitutional defense; it engaged in a very public denunciation of a private citizen and minister (Terry Jones) for the exercise of his religious convictions and First Amendment rights, and sent an FBI agent (not an Army chaplain) to put the bite on him; and now this inexplicable federal reach to put an Amish bishop in the slammer, not for the term of years he deserves, but for LWOP -- a sentencing recommendation so irrationally harsh that no one in the country, outside the Adminstration, even bothers to defend it.

That constitutes the basis for reasonable suspicion that the Administration is hostile to Christianity, at least in its use of public power. But, as you have pointed out, it is not strong enough to support my charge that THIS PARTICULAR CASE is a product of such hostility. Particularly telling in that regard is that the prosecution did have the effect of protecting other members of the Amish religion that Bishop Mullett was menacing. That by itself significantly complicates any claim, mine included, that the case is borne of Administration hostility to religion.

I have to think that such hostility lay in the background. I cannot recall a single instance from any prior Administration in which a Christian cleryman was recommended for a life sentence for anything outside a homicide offense. But I must now agree that the objective evidence is insufficient to anchor my origianl charge.

This does not justify others' having claimed that I alleged a "war" against religion -- an incendiary and exaggerated proposition I never authored (it was authored for me). It also doesn't justify the astonishingly hypocritical and sudden embrace of uncharged conduct to go after a defendant -- a position flagrantly contrary to the one espoused previously.

But the sins of others are sufficient unto the day. I made a charge that had, in my view, some support, but not enough. I have often said here that others' shortcomings are no excuse for your own. That same thing applies to me. AnonymousOne, Doug and Daniel (to an extent) have the better of this argument. A hat tip to them all.

Posted by: Bill Otis | Feb 12, 2013 2:22:42 PM

Bill,

A few short notes.

-I truly appreciate your willingness to really consider opposing arguments honestly, and I hope I can always meet that same example you've set. It has also been a pleasure engaging in discussion with you, and I hope to continue to do so.

-If I characterized your position as alleging a "war" on religion (I can't recall after so many posts), it was an improper exaggeration, for which I apologize.

-I agree that it is possible that this administration is hostile to religion. That was and is my position. It was always a matter of evidence in this specific case.

-This prosecution was, and is, unjust. I still believe that, whatever may be the motivating factor. And it is unfair that uncharged conduct may be playing any role.

AO

Posted by: AnonymousOne | Feb 12, 2013 4:05:47 PM

Very gracious final comment here, Bill, and one that confirms my belief in your fair-minded nature and that also provides an example that extended engagement by you and others in the comments can be rewarding and constitute time well spent by all.

Posted by: Doug B. | Feb 12, 2013 6:25:31 PM

Doug and AnonymousOne --

Thank you for being gracious in victory. Your numerous thoughtful and substantive discussions make this blog the invaluable (and highly entertaining) resource it is.

Posted by: Bill Otis | Feb 12, 2013 8:08:17 PM

I remain unbeaten.

Posted by: federalist | Feb 12, 2013 10:20:46 PM

federalist --

Now, now. No crowing.

Posted by: Bill Otis | Feb 13, 2013 1:30:30 AM

Ah, federalist... a legend in his own mind...

Posted by: Doug B. | Feb 13, 2013 8:23:25 AM

Ah, Doug, a law prof who is comfortable with sophistry and fanciful examples to make arguments about the law.

The fact is, Doug, and you can avoid it, or whatever, but you pounced on perhaps an overstatement by Bill borne out of disgust with the Holder DOJ (and of course, in so doing, engaged in your own hyperbole), yet you uncritically passed along nonsense from one of your colleagues because it fit a liberal worldview of our criminal justice system. And when asked about it, you dissembled.

Posted by: federalist | Feb 13, 2013 9:01:34 AM

An interesting case with involvement from the Feds, which Sam Mullet's attorney has declared unnecessary.

Posted by: Amish Beard-Cutting Cult | Apr 27, 2013 3:15:05 PM

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