November 13, 2013
Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?
The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence.
Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston. This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.
Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd. This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:
This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.
Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.
Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.
I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.
Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.
UPDATE: On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.
November 13, 2013 at 01:15 PM | Permalink
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The problem here is easy to state: Bulger did not get the death sentence he earned in spades by his multiple, grisly murders.
Erroneous leniency in one case, however, is no reason to give it in all cases, unless the concept of "equality" has been dumbed down beyond recognition.
(Of course if Bulger had been given the DP, the usual suspects on this board would be wailing about how barbaric it is to be so mean to a man of his age).
Posted by: Bill Otis | Nov 13, 2013 1:29:24 PM
Once someone has met what I see as the rather low bar justifying the imposition of a death sentence (a theft in the $50 range could justify it to me, a theft in the $500 range would certainly deserve execution) I really don't see much point in debating whether offender X is more or less deserving than offender Y, they are both deserving, the fact that neither is actually likely to be executed (no matter what their actual offense) is a disgrace rather than something to celebrate.
Posted by: Soronel Haetir | Nov 13, 2013 3:07:56 PM
Well, Bill, the issue for me is not erroneous leniency as much as it a guideline sentencing system/structure that gives nearly everyone prison and recommends LWOP for lots of folks. Do you think it will be "erroneous leniency" if Sam Hurd gets less than LWOP? And do you fault prosecutors --- state and federal --- for erroneous leniency in Bulger and all other like cases given that prosecutorial choices are usually critical, especially in the federal system, for there even to be a chance for erroneous leniency?
I wish you would stop complaining, Bill, about what you think are the complaints of the "usual suspects" (who actually do not seem to comment much here anymore) and instead would try to respond to my complaints about a current federal sentencing system you seem often so eager to defend as righteous and effective.
Posted by: Doug B. | Nov 13, 2013 3:22:45 PM
"Well, Bill, the issue for me is not erroneous leniency as much as it a guideline sentencing system/structure that gives nearly everyone prison and recommends LWOP for lots of folks."
I don't know about that. What's "lots?" Could you provide figures for how many federal felony sentences were handed down last year, and how many of those were LWOP? I suspect the percentage will be negligible, but I'll await the numbers.
"Do you think it will be "erroneous leniency" if Sam Hurd gets less than LWOP?"
I don't know because I don't know the details of the offense or the offender.
"And do you fault prosecutors --- state and federal --- for erroneous leniency in Bulger and all other like cases given that prosecutorial choices are usually critical, especially in the federal system, for there even to be a chance for erroneous leniency?"
Tell that to Jack Weinstein. The problem in that courtroom is anything BUT the prosecutors. Or is the Second Circuit a bunch of troglodytes? In fact, Weinstein is a leftist ideologue on sentencing issues, but I don't recall your criticizing his lawless approach a single time.
As for your more general question, you bet I fault Eric Holder's prosecutors for not seeking the DP against Bulger.
"I wish you would stop complaining, Bill, about what you think are the complaints of the "usual suspects" (who actually do not seem to comment much here anymore) and instead would try to respond to my complaints about a current federal sentencing system you seem often so eager to defend as righteous and effective."
I have responded vastly more frequently than any other commenter, here and in other forums, and am grateful for having had the opportunity to do so.
As for "complaining," I would ask that you check out your own blog about the new Michigan statute requiring a $50 (14 cents a day) yearly fee for sex registrants. The number and belligerence of the complaints about this 14 cent fee is mind-blowing. But I haven't seen a word from you about the "complaining" about this trifling fee.
Finally, I don't know that I've ever said the federal sentencing system is "righteous," but I think it's fair overall, vastly better than the luck-of-the-draw system it replaced, and, yes, effective, because it has contributed significantly to the main thing our citizens expect and deserve from the sentencing system, to wit, serious punishment of felons and the suppression of crime.
Of course, after the 2008 election, the Democrats, who wholly owned Congress and the White House, could have made any and all of the changes you want. I don't believe it's my fault they didn't.
As to the changes they DID make............well, I won't go into that.
Posted by: Bill Otis | Nov 13, 2013 4:18:39 PM
Bolviated Washington lifers, living in the bubble they helped create makes is less likely they'll ever be willing to make any honest effort to pin prick it for the betterment of all.
Posted by: Bobby Gee | Nov 13, 2013 5:38:34 PM
I am glad Professor Berman is calling you out. You are a disgrace. You are clearly intelligent and well informed, but you use your talents and expertise to advocate sadistic policies. You have some fair points that the Federal system has some strengths, and unfettered discretion leads to its own issues. But you seem singularly unintersted in efforts to curtail the excesses of what is by any measure a hugely punative system relative to other Western countries. Accepting that movement towards harsher punishment has had some effect on reducing crime rate, why does that justify so many LWOP sentences. Couldn't it be that the marginal benefits are coming from shorter terms where, under the old system, probation was often the sentence. Why would one ever want to impose LWOP, especially for a non-violent offender, which by definition removes the possibility of a systematic way to re-evaluate offenders who may have matured during their time in prison. We have an out of control system, and you seek to enable stasis by denying the obvious. You complain about extremists on the left (to use the sort of, imprecise shorthand you favor), but you take extreme positions on the right, with seemingly no interest on working towards consensus for reform. Do you really believe the stuff you spout, or are do just enjoy being a provocateur. Even your old colleague Ed Meese now advocates reform, along with Newt Gingerich, etc. So, why do you say everyone (or even most) advocating reform is some sort of liberal elitist. You need to do some soul searching.
Posted by: Mark | Nov 14, 2013 12:01:23 PM
It is a treat to see Professor Berman and Bill Otis go toe to toe! It is like hearing Vin Scully and Jon Miller, my two favorite baseball announcers, discuss the pros and cons of the "neighborhood" play on second base. I understood Bill's comment about the Usual Suspects and whether I agree or disagree, he always supports his points in a clear and entertaining manner. Professor Berman reminds me of something Sandy Koufax said about Hank Aaron, "Trying to get a fast ball by Henry Aaron is like trying to sneak the sunrise by a rooster." In fact, may I suggest some Doug Berman/Bill Otis point counterpoint?
(Note: If you are trying to persuade others concerning the merits of your position, it is probably not good to call them names or to invoke Ed Meese's name for anything.)
Posted by: Stanley Feldman | Nov 14, 2013 1:39:30 PM
Couple of quick follow-ups, Bill, because it seems folks are eager to see us go at it:
1. The USSC data indicate that, in FY 2012, about 825 offenders had recommended guideline ranges of Life or 360 months-Life. I think that qualifies as "lots," though I also think it reasonable to call this a "negligible" number because it is just over 1% of the 75,000 sentences in the data group. So might we agree we are both right? I do thank you for encouraging me to look at the data, and I am pleased to see that Sam Hurd's situation is more of an outlier than I thought.
2. Judge Weinstein can be criticized for mis-use of the law, but he is subject to legal rules and legal review of his legal judgements by other judges, so his work is not formally lawless. In contrast, federal prosecutors generally are not subject to legal rules or legal review when they exercise leniency, and I wish you would publicly and forcefully attack them more -- e.g., where is you op-ed complaining that AG Holder not seeking death for Bulger or for state prosecutors not now seeking death for Bulger's murders in their states (or for the state prosecutors who very often enable undue leniency is so many drunk driving and contact sexual offense cases).
3. We, of course, disagree as to whether the current federal system should merit the label fair and effective, but I hope you would agree that improvements are possible. And I especially hope you would agree that something is wrong with a legal system that recommends the same sentence for Whitey Bulger and Sam Hurd. That was the main point of this post.
Posted by: Doug B. | Nov 15, 2013 2:21:12 PM
lol loved this bill!
"As for "complaining," I would ask that you check out your own blog about the new Michigan statute requiring a $50 (14 cents a day) yearly fee for sex registrants. The number and belligerence of the complaints about this 14 cent fee is mind-blowing. But I haven't seen a word from you about the "complaining" about this trifling fee."
You just DON'T get it! might be time to treat you like an old mule and bring out the 2x4!
It's got NOTHING to do with the amount of the fee! It's the fact that these treasonous little shits think they can add an after the fact fee for ANYTHING!
But considering how fucking desperate they are for money. I find it odd that non of the other 10,000 felony charges now on the books in the former United States Of America seems to draw one of these illegal after the fact fees!
Posted by: rodsmith | Nov 15, 2013 4:10:13 PM