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December 16, 2013

You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts

One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:

Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:

Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall.  Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.

Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.

Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....

Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years.  After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.

Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.

And now, from a federal court in Rhode Island:

A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.

Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.

Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.

Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.

On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.

Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.

To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.

Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?

December 16, 2013 at 03:52 PM | Permalink

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Comments

Every single issue you raise in my mind counsels in /favor/ of mandatory minimums. Is that not the real problem here? At least with mandatory minimums there is some crude equality in the law.

Further, your post highlights one of the reasons I tend to be distrustful of libertarians of all stripes. Equality is cultural value. It is such an important value that we fought a war over it and passed an amendment to the constitution about it. What value equality plays in every sphere of public life need not itself be precisely equal. But for an American to publicly state that equality is garbage and they just do not "fully" understand it leaves me slack jawed.

For the record, I think the six year sentence in this case is shameful as a matter of /policy/. Whether it is shameful as a matter of sentencing law--well, who would know better than you Doug?

Posted by: Daniel | Dec 16, 2013 5:23:03 PM

"More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?"

And some states have the death penalty while neighboring states don't.

No, that is not problematic. It's precisely what federalism is about -- a fact that seems to get much better remembered on this blog when the subject joyfully turns to allowing different states to "experiment" with different drug laws.

P.S. The real problem here is not disparity. It's the defendants' atrocious conduct, conduct that makes laughable the oft-argued notion that "first-time, non-violent" offenses shouldn't be punished with imprisonment.

P.P.S. I largely agree with the sentiment behind Daniel's comment, and its observation that mandatory minimums help bring about at least a semblance of equal treatment.

Posted by: Bill Otis | Dec 16, 2013 5:42:45 PM

Every single issue you raise in my mind counsels in /favor/ of mandatory minimums. Is that not the real problem here?

No. The prosecution agreed to a plea bargain where the maximum was 10 years, which is what the prosecution requested. Therefore, even if the judge had gone along with the prosecution's request, the sentence would have been barely 1/3 as long as the other. This is yet another example of what our host has said dozens if not hundreds of times, that largely unreviewable prosecutorial discretion has the ability to create large sentencing discrepancies just as much as unreviewable judicial authority does.

Posted by: dsfan | Dec 16, 2013 5:42:49 PM

So what was the plan to correct the problem in each case? Apparently there was no plan! Apparently correcting the problem was not on the agenda.

Posted by: Tom McGee | Dec 16, 2013 6:09:10 PM

Please describe what the MM statute you would draft to create a semblence of equality in these cases, Bill and Daniel. Would it say every economic fraud gets 10 years? 20? Just curious how you think MRS deal with these issues fairly and effectively.

Posted by: Doug B. | Dec 16, 2013 7:49:21 PM

Doug --

I will leave it to, respectively, Congress and the state legislature to draft the MM statutes, since those bodies have vastly greater resources to gather and assess information than I do. (They also have the democratic portfolio to do so).

To acknowledge that MM's should be drafted only in light of experience is, of course, vastly different from taking the extremist NACDL position that they should not drafted at all. As the recent scandalous sentencings in the Corey Reingold case (EDNY) and Minnesota (30 days for child rape) overwhelmingly illustrate, the people's representatives are well advised to ignore the calls to cut electorally-responsible bodies completely out of sentencing.

Judges have earned considerable deference. But human fallibility suggests that no one person and no one branch be given 100% say-so over sentencing.

P.S. Am I to gather that you agree with my observation that these appallingly callous and greed-driven hoodlums disprove the theory that "first-time, non-violent" offenders get an exemption from imprisonment?

Posted by: Bill Otis | Dec 16, 2013 8:41:39 PM

Doug:

In my view one of the major problems with the current sentencing scheme in economic cases (where the loss is purely monetary) is the diminishing returns for losses. Crimes with small losses get treated much more harshly than crimes with large losses on a proportional basis. Imagine a scheme where the the mandatory minimum was one year for every one million in attributed losses. That is the type of scheme that interests me.

Another issue I think needs to be resolved and in this respect I think dsfan and I are probably on the same wavelength is the way that various nitpicky items get added on to sentences to make them longer or shorter. Oh there was a computer involved so we add +2. Or there was a bank involved so we add +3. There were more than 500 victims so we add +10. This also creates large disparities.

This is not the way that criminals think, unless maybe they are Harvard MBAs. Your average check kiter is not getting on-line, looking at the sentencing guidelines, and thinking to himself. "Well, I am planning to do X and then maybe do Y and OK if I do that...(runs finger along page)...that means my maximum sentencing exposure is 25 years under Class I." Get serious. No one does that. This is the way that legislatures think who are trying to promote social policy through the criminal justice system. It is nonsense. It makes it easy for prosecutors to manipulate the process by choosing to add or not add these other factors when they charge. The result is that even when the economic losses are the same the sentencing guidelines produce widely different ranges, for no good reason as far as I can see.

So in my view, yes I support mandatory minimums in theory. But I think that any serious discussion of what their exact amount should be has to involve a revaluation of the entire sentencing guidelines at least insofar as economic losses are concerned.

Posted by: Daniel | Dec 16, 2013 8:55:10 PM

Given that I believe execution is the appropriate punishment for thefts of $250 and don't have a problem with the idea until talking about thefts in the $10-$20 range I find both of these sentences wildly lenient.

Daniel,

I am curious what you see libertarian thought having to do with punishment theory. As far as I've seen libertarians are much more about defining the contours of what should be allowed rather than what is the correct response to lawbreaking.

Posted by: Soronel Haetir | Dec 16, 2013 9:43:53 PM

Bill, I am always quick and eager to say that not ALL "first-time, non-violent" offenders must get an alternative to incarceration --- after all, it would be an insult to victims for the likes of someone like Madoff to suffer no extreme deprivation of his personal freedom. But I am also quick and eager to say that not ALL first-time offenders must be incarcerated for years or decades. But this is what MMs are eager to require --- five years for receipt of a few pics of CP, five years for selling one ounce of crack --- and yet you are tellingly eager to avoid the ugly crudeness of trying to draft a one-size-fits-all approach to fraud sentencing.

Even more fundamentally, as you surely know well Bill, MMs never work to really require prison time in all cases equally because prosecutors can and will decide whether and when to invoke them. Indeed, many child porn offenders arguably much more vile and vicious than Corey Reingold have gotten federal sentences much lower than he did because federal prosecutors opted to take a plea without an applicable MMs. And thousands more CP offenders have avoided federal prosecution altogether because prosecutors lack the time or interest in going after every person who downloads CP. The only way one can really think equality interests are truly served by crude MMs is to be willfully ignorant to when and how these provisions do (and do not) get applied.

Of course, Bill, we both know your interest in MMs is not in service to equality, but rather in ensuring prosecutors have the sentencing trump power that MMs provide.

Posted by: Doug B. | Dec 16, 2013 10:36:03 PM

Doug:

But is that a problem with mandatory minimums or a problem with prosecutorial discretion? I get the impression from your comments that you are not opposed to MM per se but are opposed to the way they are used and abused. Or is it your position that because of the nature of prosecutorial discretion MM are /inherently/ and /inevitably/ unworkable in practice?


Posted by: Daniel | Dec 16, 2013 11:49:02 PM

Doug --

"I am also quick and eager to say that not ALL first-time offenders must be incarcerated for years or decades."

Tilting at windmills? There's not a single serious person who says that "ALL first time offenders" must be incarcerated for years or decades. MM's apply to a tiny fraction of felony defendants.

"... this is what MMs are eager to require --- five years for receipt of a few pics of CP, five years for selling one ounce of crack..."

Both crimes you specify are extremely harmful (the word you constantly avoid, preferring to hide the ball by using only "violent" (and thus fuzz over the fact of sending addicts to their ruination and death while the criminal justice system congratulates itself on its "humanity"). These crimes should not be dismissed, nor should they be handed off to the Jack Weinstein's and John Gleeson's of the world to go googoo over.

"...yet you are tellingly eager to avoid the ugly crudeness of trying to draft a one-size-fits-all approach to fraud sentencing."

Ah, yes. When convenient to the pro-defense side, what you sometimes (indeed in this very comment) refer to as "equality" gets painted as the "ugly crudeness of trying to draft a one-size-fits-all approach."

Of course it's just a rhetorical straw man. The problem with the abandonment of MM's is the never-quite-admitted return of uncabined judicial willfulness. The Imperial, Know Everything Judge gets the 100% say-so; the unwashed (because elected) legislature gets to sit in the corner.

"Even more fundamentally, as you surely know well Bill, MMs never work to really require prison time in all cases equally because prosecutors can and will decide whether and when to invoke them."

Because the Constitution gives charging power to the executive, exactly.

What's your alternative? That the judicial branch decide (and then try) the charge? That it be decided by the defense lawyer? That there be no discretion at all, and thus the one-size-fits-all standard (the one you were decrying in your last paragraph)? That there be no legislative brake on the mind-bending stupidity and callousness of judges who want to give 30 days to child rapists? What?

The remainder of your comment simply decries the reality that, because of the lack of resources, some cases get pled, some don't, and some get left on the editing room floor altogether. Like you, I wish the system would devote more money to the criminal justice system (and less to paying rappers to make Obamacare ads and hold IRS hula parties), but I'm not the Attorney General. (If you want me to throw my hat in the ring after the 2016 elections, however, I'm all ears).

Posted by: Bill Otis | Dec 17, 2013 12:27:01 AM

Daniel, as Bill is quick to note when I lamented the sentencing inequalities created by the exercise of prosecutorial discretion, the broad and unregulated and largely hidden charging and bargaining discretion that federal prosecutors may be a constitutional requirement and are certainly a practical necessity in a world of limited resources.

Given these realities, the real issue with MMs is not whether legislatures can have a say at sentencing. Of course they can and always will, through the development of sensible punishment options, statutory ranges, structured sentencing guidelines, and appellate review standards. Rather, when is really at issue with MM is if we think it wise to give prosecutors a potent sentencing trump card to be deployed or avoided based on the broad and unregulated and largely hidden discretionary interests of prosecutors.

If you think partisan prosecutors can and should be trusted to use their unregulated and hidden discretionary powers in service to sentencing goals better than independent judges, then MMs are a wise device. That is why, I think, Bill supports them. In contrast, if you think, as I do, that independent judges can and should be trusted to use their regulated and on-the-record discretionary powers more than partisan prosecutors, then I think you should see that MMs are likely to produce more inequality than they prevent.

Posted by: Doug B. | Dec 17, 2013 10:21:27 AM

That there be no legislative brake on the mind-bending stupidity and callousness of judges who want to give 30 days to child rapists? What?

It's worth noting, I think, that in this case (I think you meant Montana and not Minnesota), the prosecution initially agreed to deferred prosecution (so no jail, or a conviction!). I'm not going to fault them for that decision--a statutory rape case with a deceased victim is probably nearly unwinnable--but it (yet again) shows how prosecutorial discretion influences sentencing inequities.

Posted by: dsfan | Dec 17, 2013 11:47:12 AM

Doug --

Your biases are showing.

First, the prosecutors-are-Satan mantra is wearing a bit thin. They are doing what the law permits (and circumstances encourage) when they follow Bordenkircher, negotiate pleas, and treat different defendants differently (which of course results in different sentencing outcomes). I'm fine with all of that. Why shouldn't I be? Disparity per se was never the problem. Irrational, luck-of-the-draw disparity was the problem.

Your view of judges as The Repository of All Non-Partisan Wisdom is also way wide of the mark. Judges may not be partisans, but they can certainly be ideologues. Do you actually approve of Jack Weinstein's gushing embrace and flagrantly illegal sentence for a thoroughly gross CP distributor?

That's an actual question: Do you approve of Weinstein's work in the Corey Feingold case (including concealing the defendant's name to enable him to keep up the business, a ruse the Second Circuit pointedly refused to follow)?

The mandatory minimum in that case is the ONLY reason Weinstein is going to be forced to clean up his frolic. This does not strike me as a reason to get rid of the mandatory minimum. It strikes me instead as a strong example of why we should keep it and others like it.

What do you think the reaction would be if the Corey Feingold case were well known among the public, instead of just being an item on pro-defense blogs? Do you think the public would be more or less in favor of MM's?

Not that it stops with Weinstein. This sort of defendants-are-wonderful view of life existed for years with Nancy Gertner, which is why you often referred to her as a sentencing heroine. And then there's Gleeson and Jack Kane and Mark Bennett and lots more.

Nor is it stop there. Let's face it, federal judges -- while, again, for the most part good people and fair-minded -- simply are not the law-driven, pristine saints you portray them to be. Remember Jack Camp? Alcee Hastings? Walter Nixon? Harry Claiborne? Remember the Operation Greylord group? No, they weren't feds, but they give yet more indication that the judicial robe is not the robe of sainthood you portray. Seventeen judges got nailed in Greylord, for selling everything from dismissals to reduced sentences to outright acquittals.

This is the branch to whom you want to entrust 100% of sentencing 100% of the time, with zero role for the legislature to require, for particularly harmful offenses (as defined by the legislature, not NORML or the NACDL), that a certain rock bottom is as far as we're going to go.

I doubt that you really believe the caricature of prosecutors you suggest. With rare exceptions, they are not thugs. And judges are not the Solomon-like know-it-all's you seem to think they are.

Sentencing overall will be improved if ALL THREE branches have a say in it, not just the judicial branch. Liberals and libertarians, who at one time understood the wisdom of dispersing power, used to agree with this.

Posted by: Bill Otis | Dec 17, 2013 12:07:39 PM

dsfan --

1. That some prosecutors can be stupid an callous does not excuse judges in the same case (or any case) for ALSO being stupid and callous.

2. Is it your view that 30 days for a perfectly sane man in his 40's is a just sentence for raping a 14 year-old?

3. It's true, as you note, that the victim is dead. The reason she's dead is that she killed herself after the degradation of being raped by a man easily old enough to be her father.

Under those circumstances, the fact that she's dead calls for more determination, not less, from the prosecutor.

Any other take on it would be a bit like the prosecutor's saying to himself, "OK, Mr. Jones robbed the bank, but later on he robbed the evidence room of the loot and his mask, so it's a tough case, so let's just forget about it."

I'm sure defense lawyers would love prosecutors who "thought" like that. Would anyone else have a reason to love them?

Posted by: Bill Otis | Dec 17, 2013 1:03:34 PM

Putting aside the potential differences in punishment range, there is also the difference on parole. If the Ohio defendant is eligible for parole after 25% of his sentence, his time in custody may end up being close to the time in custody of the federal defendant. If you shift power to a post-conviction parole court to determine how long a defendant will serve, you will get a lot of prosecutors and sentencing judges trying to take that into account in determining the "right" sentence to get the "right" amount of prison time.

Posted by: tmm | Dec 17, 2013 2:22:27 PM

Bill, the issue you keep avoiding is the persistent hidden authority for prosecutors to deploy or avoid the "rock bottom" sentence you claim the legislature demands without rules or review or even the awareness of the public. You can beat up judges who make decision you disagree with because those decisions are on the record.

Can anyone --- and will anyone ever even try --- to identify and call out all the prosecutor who were much softer on CP downloaders than Weinstein or Gertner have ever been? Indeed, given that CP receipt is clear in every computer CP case which is resolved only via a possession charge, are you going to attack the hundreds of federal prosecutors who keep bringing only possession charges in CP cases and thereby avoid the 5-year "rock bottom" it seems you think Congress thinks is essential in every case?

I agree 100% than prosecutors are not all devils and not all judges are angels. But if you think the rule of law and transparency are important sentencing decision making values, then you have to acknowledge that prosecutors have a much more "devilish" decision process while judges have a more balanced one. Then again, if you like/trust the person making the decision because he is a prosecutor, I understand why you do not worry about the process he uses. And if you dislike/distrust the the person making the decision because she is a judge, I understand why you wish to deny her power even if her process is more balanced, more subject to the rule of law, and much more transparent.

Let me ask you the structural question about who should make value judgments in our federal system this way: would you rather have Eric Holder and IRS lawyers decide what minimum federal taxes you should have to pay for 2013 based on their unregulated assessment of your worth or would you rather have a judge make that determination based on reasonable and reviewable interpretations of the tax code?

Posted by: Doug B. | Dec 17, 2013 2:32:46 PM

Doug:

Thank you for that cogent explanation. I find it ultimately unpersuasive. In the big picture I do not see how one creates an effective system of justice without some degree of prosecutorial discretion. So the question then becomes what to do about prosecutors who do abuse that discretion. One answer, you answer it seems, is to reduce the power of the prosecutor--in this case be the removal of a legal tool viz. MM. The good news about this approach is it fixes the problem in the same way that no one can get shot if there are no guns. My objection to this approach is that it is fundamentally anti-democratic (with a small d). In my view if a partisan prosecutor is abusing his power we have a mechanism for fixing that: elections. I am a strong believer that answer to failings in a democracy is more democracy, not less.

So the question then for me is simple: do MM serve a legitimate social value within the criminal justice system? They do: they promote equality. Since MM serve a legitimate goal then they should remain. The "bad man" problem is resolved by removing the man, not removing the tool.

Posted by: Daniel | Dec 17, 2013 2:45:47 PM

I was going to mention this issue but thought it was off-topic and then came across this article hot off the press:

http://www.theatlantic.com/national/archive/2013/12/i-got-myself-arrested-so-i-could-look-inside-the-justice-system/282360/

A prosecutor tries to get himself arrested, deliberately, in NYC. The results are revealing. Is prosecutorial discretion really the bugaboo that threatens justice in America? There is a good case to be made the discretion given to the police is a far bigger problem.

Posted by: Daniel | Dec 17, 2013 3:10:46 PM

1. That some prosecutors can be stupid an callous does not excuse judges in the same case (or any case) for ALSO being stupid and callous.

2. Is it your view that 30 days for a perfectly sane man in his 40's is a just sentence for raping a 14 year-old?

3. It's true, as you note, that the victim is dead. The reason she's dead is that she killed herself after the degradation of being raped by a man easily old enough to be her father.

I don't think it's a just sentence, but I don't fault prosecutors for believing (likely correctly) that the case was unwinnable and getting whatever they could. My point, as Prof. Berman was mentioning regarding prosecutors having huge amounts of hidden authority, was that no one would ever have even heard of this case--and the more lenient sentence prosecutors agreed to--except for a probation violation. And MMs don't really change that at all, because you can easily charge a lesser included offense (say an indecent assault).

If you shift power to a post-conviction parole court to determine how long a defendant will serve, you will get a lot of prosecutors and sentencing judges trying to take that into account in determining the "right" sentence to get the "right" amount of prison time.

When Virginia, a state with jury sentencing, abolished parole in the 90s, prosecutors objected to informing juries of this fact, knowing this effect is real.

Posted by: dsfan | Dec 17, 2013 5:58:27 PM

Sound points, Daniel, though requiring some important nuances:

1. In the federal system, prosecutors are appointed/hired, not elected, and many are "career" folks who keep their jobs even after voters have elected a new/different Prez. So, though democratic control might work and work well in state systems, they cannot readily serve as a check on the bad prosecutor in the federal system. Indeed, federal prosecutors' "sentencing" work is so cloistered and unregulated, it is often hard for folks to know who among prosecutors is making the "sentencing" calls. (I had a federal judge report to me that a federal prosecutor had reported to him that his charging/bargaining decision in a CP case was based on a claimed national DOJ policy which I had never heard of.)

2. I agree that MM can and do operate to serve the "legitimate goal" of increasing prosecutorial sentencing power relative to judicial sentencing power. But all extant significnat research on the topic suggests that, at least in the federal system, MMs actually foster/facilitate MORE inequality than equality in sentencing because MMs are binary, crude and move in 5/10 year blocks of years of imprisonment, whereas sentencing guidelines are multi-dimensional, nuanced and move in block of months.

In sum: your general affinity for MMs in service to equality and democracy may make good sense for state CJ systems, not only in theory but also perhaps in practice. But in the federal system, if the goal is promoting equality, I think MMs function to harm this interest. Again, they can/will serve other interests: empowering prosecutors behind closed doors rather than judges in open court. But I do not think anyone but prosecutors are likely to favor that default approach to matters.

To again think about this basic structural issue, I encourage you as well as Bill and any others to imagine you yearly federal tax bill (arguably a sentence for your economic success) to be decided in one of two possible ways: AG Holder and his agents get to look at your conduct and character and then decides what they think would be a fair and just minimum amount you federal tax you have to pay based on their own vision of fairness and justice and the needs of our nation OR a federal judge looks at your conduct and character and then decides what he thinks the laws of the tax code indicate you have to pay. (Also, assume you get real information about how Holder makes his minimum tax decision about you, but you would get to present arguments and seek appeal from the judges decision.)

Of course, the analogy between federal sentencing/punishment and federal tax/punishment is not perfect. But, of course, with taxes were are only concerned with money, whereas with sentencing we are concerned with human liberty. And I want decisions, generally speaking, to deprive human liberty in this nation to be made principally by independent judges on the record and subject to legal rules and appeals, not by partisan prosecutors behind closed doors subject to no laws and no transparency. I also think that is what the framers wanted: rule by laws, not by executive branch officials. At least that's what Justice Scalia has convinced me of.

Posted by: Doug B. | Dec 17, 2013 6:31:00 PM

Here is a question for Bill and Doug. Are mandatory minimums penalties or punishments?

Posted by: Tom McGee | Dec 17, 2013 7:20:35 PM

Doug --

"Bill, the issue you keep avoiding is the persistent hidden authority for prosecutors to deploy or avoid the "rock bottom" sentence you claim the legislature demands without rules or review or even the awareness of the public."

Then the solution, which I would fully support, is for DOJ as a matter of policy to require USAO's to disclose on their websites, in a succinct but understandable way, the reasoning behind decisions to grant or withhold leniency in major cases. (Cost would make it prohibitive in all cases, unfortunately).

But that is not the solution for which you have been pushing. Your solution (Leahy/Paul) is both overbroad and inapt to the problem. It's overbroad because it would abolish MM's altogether no matter how dangerous and grotesque the crime or how ideological the judge. It's inapt because it would not do one single thing to bring visibility to the prosecutor's decision.

Now you are one smart cookie -- a Princeton and Harvard man. Surely you know that the Leahy/Paul solution has these defects. So why is it the one you support, rather than one like mine?

I think the answer is that you simply want lower sentencing across the board, and you know that unleashing the Weinstein's et al. of the world will move the ball in that direction.

Am I wrong about that?

"You can beat up judges who make decision you disagree with because those decisions are on the record."

Not exactly. That they are on the record is the CATALYST. That they are a burlesque of law and an ideological screed is the CAUSE of my criticizing them. If you want the full nine yards of my criticism, let me just adopt the opinion of the Second Circuit.

Now let me ask some questions.

Do you think prosecutors are to be castigated because they do what Bordenkircher held point-blank they can do?

Do you think defense lawyers should also walk away from their Supreme Court victories?

Do you think Weinstein was right, or was the Second Circuit right?

In particular, why do you think Weinstein was correct in continuing to hide the pornography distributor's name (Corey Feingold) when the Second Circuit pointedly refused to? What possible reason could Weinstein have for doing such a thing? The defendant was an adult. He wasn't the victim. There are no security concerns (as there are, for example, when the defendant's gang has put out a contract on a government witness). The case was open and public, and the public paid for it.

If Weinstein was continuing to give Feingold cover for some reason OTHER THAN hoping to help him keep on keepin' on, I have yet to figure it out. Got any suggestions?

Posted by: Bill Otis | Dec 17, 2013 8:17:48 PM

Bill, I like you proposal a lot, but wonder if you also support police having a right to prevent prosecutors from exercising leniency in some cases and being able to appeal such decisions to main justice and others?

Posted by: Doug B. | Dec 17, 2013 8:36:22 PM

Doug:

Yes, I call the point you make about the federal system the "attenuation problem". We elect a president and then expect him, in theory, to oversee the workings of a bureaucracy of millions of workers. Trying to hold an elected official accountable through elections for the behavior of men he never met and in many cases wouldn't be able to tell you the names of is definitely problematic. However, I've not come up with a good solution to it that doesn't involve major, and probably unrealistic, changes. For example, I think one virtue of a parliamentary system is that because the leader arises out of the party instead of a direct election it is more obvious to the people that they are voting for a party rather than a single man. So it's the party that gets held accountable in the voters' mind. And when the party gets held accountable the members of the party have an interest in keeping track of what other members of the party are doing, allowing for less attenuation.

I have never thought about the issues of MM in this context. I'll ruminate on it.

Posted by: Daniel | Dec 17, 2013 9:10:26 PM

Doug --

I'll be happy to answer your question, but would like your answers to the ones I put but that you don't acknowledge or respond to.

I very much enjoy our exchanges, but I would prefer to keep them actual exchanges rather than just one person asking and the other answering.

P.S. I want to correct an error I made. The defendant was Corey Reingold, not Corey Feingold.

Posted by: Bill Otis | Dec 17, 2013 9:59:22 PM

Mandatory minimums have the virtue of involving two branches of government in sentencing. First, the legislative branch determines the offenses for which mandatory minimums should apply as well as how long the mandatory minimums should be. Second, the executive branch determines when the conduct of a particular defendant warrants a charge that triggers the mandatory minimum. Those who decry mandatory minimums, on the other hand, want to invest sentencing power almost exclusively in one branch--the judiciary. And, interestingly, in the federal system that one branch is the only branch that is unaccountable to the citizenry--it is full of people who can't be removed from office regardless of how incompetent, irrational, intemperate, or out-of-touch they are. How is that a good thing? How is it better to allow one completely unaccountable person to determine a sentence than to allow 535 elected representatives and the Attorney General/DOJ who serves at the pleasure of the elected president?

The reality is that most Americans support mandatory minimum sentencing. And that, of course, is why we have mandatory minimums on the books---our elected representatives passed the mandatory minimums after the public became upset with light and disparate sentences, as well as high crime rates. That is the beauty of democracy. If most Americans decided tomorrow that they wanted lighter sentences, more disparity, and higher crime, then I am confident Congress would repeal the mandatory minimums. But, that has not happened. I wonder why.

The people who carry the "let the judge decide the sentence" flag really only mean "let the judge decide the sentence, so long as he/she is a liberal former criminal defense attorney judge and not a conservative former prosecutor judge." If tomorrow, Congress became full of liberal former defense attorneys with ACLU cards in their wallets and the courts became full of conservative former prosecutors, the "let the judge decide" crowd would suddenly become the "let Congress set uniform mandatory sentences" crowd. I would bet a paycheck on that.

Posted by: Better? | Dec 17, 2013 10:18:42 PM

Bill, I am thinking more and more about your proposed suggestion that "DOJ as a matter of policy ... require USAO's to disclose on their websites, in a succinct but understandable way, the reasoning behind decisions to grant or withhold leniency in major cases." I am eager to really think this through as a an alternative to the JSVA, and especially to refine it to try to giving effect to your affinity for "ALL THREE branches [to] have a say" in sentencing. So here is my broader proposal for your consideration:

In any/all "major cases" investigated by federal authorities --- perhaps defined in terms of cases involving application of a mandatory minimum of 5 years or more --- USAO's should disclose on their websites (1) the reasoning behind decisions to proceed (or decline) bringing felony charges in federal court and behind the number of charges brought, and (2) the reasoning behind decisions to offer/accept (or refuse to offer) a plea deal involving the dismissal of charges and/or prosecutorial recommendations for a sentence below the stat max. Victims of offenses, district judges and individual legislators may request from a panel of Main Justice prosecutors an "executive writ of mandamus" that would require prosecutors to change any discretionary charging or bargaining decision deemed unreasonable in light of applicable DOJ policy statements and federal sentencing laws.

My hope/goal here with this refined proposal is to seek to subject federal prosecutorial sentencing decisions to a variation on the existing procedural requirements, transparency and review that all federal judicial sentencing decisions now have. (Actually, judicial decisions are subject to greater regulation through the presence of the advisory federal sentencing guidelines, but I will want/hope in the future to get moving on advisory federal prosecutorial guidelines.)

If such procedural structure as outlined above was adopted/embraced, I would be MUCH more likely to think the JSVA was not needed as a remedy to the current problems with MMs and I would be much more comfortable with most MMs in the federal system and your defense of them. Indeed, I might even prefer this procedural regulation to substantive reform of MMs because I think it would force federal prosecutors to seriously consider and repeatedly explain the decision use of federal tax dollars to go hard after small-time drug dealers and losers who only download the wrong porn who could readily be prosecuted in state courts.

So, Bill, would you favor/endorse this proposal? (I should note that if major cases were defined to involve only those with MMs, we would not have any economic offenses covered by this regulation. But all drug, gun and sex/violent offense would be covered.)

If you say you would, I would like to post the proposal in a new post to see what others think about this as an alternative to the JSVA.

Posted by: Doug B. | Dec 17, 2013 10:23:55 PM

Bill, let me answer the questions you posed so we can continue this dialog effectively:

1. You ask: "Do you think prosecutors are to be castigated because they do what Bordenkircher held point-blank they can do?"

No, I do not castigate prosecutors when they use their prosecutorial discretionary power wisely, only when I think they are abusing their discretionary powers. Similarly, you are eager to castigate judges when they use abuse their lawful sentencing discretion.

Critically, though, you seem eager to give prosecutors a sentencing trump card through MMs, which enhances the import/impact of their discretionary powers and thus increases the risk of abuse of this sentencing power. In contrast, you are eager to limit judicial sentencing discretion, presumably because you believe this power is subject to abuse in the hand of judges you disagree with. All of that is fine, but I think guiding legal standards, on-the-record decision-making and appellate review all help limit the abuse of discretionary powers. Notably, all these checks now serve to impact and limit judicial abuse of power, but none of them serve to impact or limit prosecutorial abuse of power (e.g., the Weinstein opinion you love to rail about got reviewed and reversed, but the leniency shown by prosecutors to Jack Camp is not subject to review or reversal.)

Again, the issue is ultimately who is more likely to abuse sentencing power. You seem to conclude it is judges, and fear it is prosecutors. I say fear because it is really impossible for me to assess and judge how prosecutors use their power because it is never explained or subject to review --- e.g., even after years of study, I still cannot figure out how prosecutors decide to charge CP possession with no MM and CP receipt with a 5 year MM. I do not know if this unregulated and unreviewed sentencing decision by prosecutors is being used wisely or abused because it is never explained so it is entirely hidden from scrutiny.


2. "Do you think defense lawyers should also walk away from their Supreme Court victories?" I am troubled when defense lawyers abuse their power -- e.g., I am often troubled by some extreme tactics used by some lawyers to seek delay of executions -- but their ethical obligation is to their client. In contrast, prosecutors have justice/society as their client, and that gives them a different set of ethical commitments (as well as a heck of a lot more resources and powers than defense lawyers). I do hope most prosecutors do not see criminal litigation as a game to be won like any other advocate, though I know many prosecutors feel pressure to seek to be extra tough because they know defense attorneys are going to advocate leniency. Nevertheless, the suggestion that the same rules and norms should govern prosecutors and defense attorneys is part of my concern with how many prosecutors may approach sentencing.

3. "Do you think Weinstein was right, or was the Second Circuit right?" Right about what, exactly? That 30 months imprisonment rather than 60 months was "sufficient" punishment for Corey Reingold and helped avoid unwarranted sentencing disparities? Given that I know of a lot of more troublesome CP users who got a lot less than 30 months because of prosecutorial leniency, it is hard for me to say who was right. That said, even my own dynamic view of the Eighth Amendment does not likely lead to the conclusion that a 5-year sentence for Reingold is unconstitutional. Thus, on the constitutional question, I find the Second Circuit more convincing.

Of course, this returns me to my main point: the sentencing decisions of the Weinsteins and Gleesons and Gertners are always subject to on-the-record explanation, public scrutiny and appellate review; the sentencing decisions of Holder and all of his prosecutorial minions never are subject to these constraints. Therefore, I continue to worry more about prosecutorial abuses of power than judicial abuses.

Posted by: Doug B. | Dec 17, 2013 10:52:27 PM

Say a human life is valued at $6 million dollars. I believe it is worth less.

Someone who has destroyed more than that amount of economic value has taken an economic human llife. That amount is the real value taken from society.l

Any amount stolen aboe that justifies a mandatory death penalty.

Posted by: Supremacy Claus | Dec 17, 2013 10:59:56 PM

Doug --

Thank you for your answers (although I see you passed on quite a few questions). Rather than debate them now, when a man of my age should be asleep, I'll defer that. I have a busy day tomorrow with, of all things, Christmas parties. Some people in this town, even people with influence, seem to have the mistaken impression that the better part of valor is to invite me, a worn-out ex-prosecutor. Or maybe they've just got the Christmas spirit.

To answer your question directly (but very briefly with more to come later): No, I would not accept your proposal as stated. The basic reason is that it's the camel's nose of judges' indirectly making charging decisions. Even though you wisely limit your list of authorized complainants to, in haec verba, "victims of offenses, district judges and individual legislators," it won't stay so limited for long. Indeed, it won't stay that way for ten seconds.

Defense lawyers will write to DOJ by the hundreds, arguing that the list is unreasonably restricted, perversely omitting the person most directly interested (the client). They will also argue that Main Justice's refusal to issue the executive "writ of mandamus" is arbitrary and capricious.

And what's going to happen when DOJ says no dice? Quick now! Righto, they're in district court faster than you can say, "prosecutors are thugs." This is the message to be delivered in the lawsuit filed before Judge Weinstein (or any other judge).

And then we are off to the races. The problem with the camel's nose is not the nostrils, which are harmless enough, even cute. The problem is that it's destined to become the whole camel.

I dealt with defense lawyers in litigation for many, many years. This is exactly what they would do with your proposal. (I will be interested to see if a single defense lawyer denies that).

By hook or by crook, the name of the defense game is to get the charging decision (not guilt, mind you, which you essentially and correctly concede), but just the charging DECISION, made (or reversed or altered) by someone other than the prosecutor, thus effectively, but radically, changing the constitutional allocation of power. To this I am opposed, as I think the Framers had it right, and even if they had it wrong, their judgment should be reversed by the means specified in the Constitution, not by the back door that your proposal is certain to become, even if not so intended.

OK, bedtime now. I'm not a spring chicken like you.

Posted by: Bill Otis | Dec 18, 2013 12:56:22 AM

Hope you slept well Bill. Tellingly, you resist an idea for fear it will be abused by well meaning others to impact what you think prosecutors should be able to do without legal regulation, but you support laws (MMs) that we have reason to fear are currently abused by prosecutors. In short, you trust prosecutors and only prosecutors is the federal CJ system. That fine, but only those who fully embrace you partisan prosecutorial perspective should also embrace you arguments for MMs.

Posted by: Doug B. | Dec 18, 2013 8:47:54 AM

Doug --

"Tellingly, you resist an idea for fear it will be abused by well meaning others to impact what you think prosecutors should be able to do without legal regulation."

Two points. I don't "fear" it will abused by others; I know full well how the defense bar will react (and I see neither you nor anyone else contradicts me on that score). They'll react by, for practical purposes, going to court every single time to get the judge to lower the charge.

Second, I'm all for regulation, so long as the "regulation" of charging resides where the Constitution contemplates, to wit, solely in the executive branch -- a branch which, unlike the federal judicial branch, faces political accountability.

"...but you support laws (MMs) that we have reason to fear are currently abused by prosecutors."

Where the prosecutor is charging something that the defendant actually did, and the evidence was legally obtained, that BY DEFINITION is not prosecutorial abuse. A difference in charging treatment based on a non-suspect classification (like the prosecutor's assessment of the defendant's attitude, true contrition and cooperation) has NEVER, EVER been thought to be invidious or abusive -- because it isn't.

It's not that the defense bar "has reason to fear abuse." It's that, under your plan, every defense lawyer will CLAIM abuse and file his lawsuit simply because that is considered required "zealous advocacy."

I would be perfectly willing to testify under oath that when a prosecutor brings a charge, even a very harsh charge, that he has reasonable (if not ample) proof the defendant committed, that not only is not, IT CANNOT BE an abuse. It can become an abuse if the prosecutor does employ an impermissible factor, but where he is making the normal judgment calls about who he's dealing with, he's doing the job the Constitution gives me. If there are still questions, it's up to his bosses in the Executive Branch to consider the matter.

The alternative will be a complete, 100% hijacking of the charging process into the hands of the judiciary. But that is not its role, not under the Constitution and not under sound policy. Take another look at the Second Circuit's Corey Reingold opinion. Judges' authority is simply not unlimited, most especially when the authority involved belongs to another branch.

I understand why the defense bar wants the charging decision to rest with someone like Nancy Gertner or Jack Weinstein rather than people like Mike Mukasey or Jim Comey. But I will not be going along with any compromise that makes that happen.

Visibility yes. Accountability to the voters, yes. Hijacking by judges eager to wander off their Constitutional reservation, no.


Posted by: Bill Otis | Dec 18, 2013 11:21:14 AM

Better? --

Nailed it.

Posted by: Bill Otis | Dec 18, 2013 11:24:42 AM

Plea bargains are of course, negotiated legal fictions. They should be viewed as any other legal fictions. At the very least, they are a shaky basis for correctional planning and programming.

Posted by: Tom McGee | Dec 18, 2013 1:30:50 PM

Please let me offer a little explanation about my previous comment. Some time ago, under California law, the Youth Authority was empowered to reject committed cases if "adequate facilities" were not available. Over the course of several months, I rejected about eight-hundred cases. When these cases were returned to court for sentencing, almost all were placed on probation. They had been plea bargained. These plea bargains were really gimmicks. Little consideration had been given to whether the Youth Authority was the proper place for them, even though the courts were expressly required to make that determination.

I have very little confidence in plea bargains as a basis for correctional programming. They are largely used for the convenience prosecutors and defense attorneys.

Posted by: Tom McGee | Dec 18, 2013 2:48:00 PM

Tom, I would add "and courts and witnesses" to your list of those for whom plea bargaining is a convenience.

Any prosecutor and defense attorney who are willing to be honest would acknowledge that the following factors play a role in plea bargaining: 1) what the prosecutor personally believes is just in terms of the behavior underlying the offense and the background of the offender (criminal history, factors showing potential for rehabilitation); 2) views about whether the legislature and the public wants this type of crime to be punished more severely (especially for elected prosecutors); 3) what the judge is likely to do on an open plea or after trial; 4) the strength of the case (including whether significant witnesses are reluctant to testify); and 5) the wishes of the victim.

Likewise, honest judges will admit that they also consider the first two factors as well the desire to manage dockets (i.e. if you undercut the prosecutor too much on open pleas, you will get more open pleas requiring more contested sentencing hearings; if you are too harsh on open pleas, you might discourage pleas and get more trials).

Only some of the above factors (e.g., nature of crime and offenders, desires of legislature/public) are related to correctional planning and programming. Additionally, the desires of the legislature tend to only be theoretically related to correctional planning. The legislature has a nasty tendency to enact sentencing options (both incarceration and alternatives to incarceration) without budgeting the resources to adequately fund those options.

Posted by: tmm | Dec 18, 2013 3:07:00 PM

I largely agree with tmm and Tom McGee in their criticism of plea bargaining. It's an economic tool, pure and simple. No component of the system -- not the courts, the prosecutor, the public defender, the probation system or the prisons -- has enough money to take cases to trial and live with what trials strongly tend to produce (to wit, longer sentences, because the prosecutor at a trial hasn't given away the store just to cope with the excess number of cases he already has, with more coming).

Plea bargaining results in dumbed down justice. But that's the way it's going to be until we understand as a culture that going in the hole to prop up present profligate spending by private parties, be they corporations or individuals who want to run up bills they can't afford, simply must be cut back in favor of more wholesome long-term values like living an honest, self-reliant life free from state subsidies.

Posted by: Bill Otis | Dec 18, 2013 3:44:43 PM

But is it fair to tax-payers and offenders alike to perpetuate this gimmickry?

Posted by: Tom McGee | Dec 18, 2013 5:01:25 PM

Tom McGee --

"But is it fair to tax-payers and offenders alike to perpetuate this gimmickry?"

As you know, I'm hardly a plan of plea bargaining. Still, it's unfair to call it gimmickry. The surrender by each side of something it wants in order to settle a case is absolutely routine in civil as well as criminal law. Compromise is never fully satisfactory, but it's not gimmickry.

As to whether it's fair to taxpayers to continue plea bargaining, it seems to me that it's up to them, not me, to decide that for themselves, since they are the ones who pay the bill. As to offenders, any defendant who wants a trial can get one. If it were up to me, they'd ALL get one.

Posted by: Bill Otis | Dec 18, 2013 9:30:08 PM

Bill--

"Plea bargaining results in dumbed down Justice"

I would just add that plea bargaining as it is now practiced also results in dumbed-down correctional performance. As I noted before, negotiated legal fictions provide a shaky foundation for correctional planning and programming.

Posted by: Tom McGee | Dec 19, 2013 1:17:04 AM

Bill, I find very helpful and interesting your view that prosecutors cannot be accused of abusing their powers as long as they comply the law as they reasonably understand it and basic ethical rules. I assume that also means you do not accept the possibility of "over-charging" as long as there is probable cause to support each charge.

I wonder if you also apply the same definition of "abuse" to the work of judges and defense attorneys --- i.e., I assume you think these CJ also cannot fairly be accused of "abusing" their powers as long as they comply with the law as they reasonably understand it and basic ethical rules.

Key point for me is a disinclination to get bogged down in semantics, as I assume that you would acknowledge that some prosecutors who follow the law may still be criticized as MISUSING their powers even if not fairly subject to a claim of abuse. Similarly, I expect you are very comfortable (as am I) acknowledging that some judges and defense lawyers who follow the law may still be MISUSING their powers if not abusing them.

I stress that point because in the end because whatever labels we put on poor uses of lawful power, the simple reality is that MMs increase prosecutor sentencing powers and decrease judicial sentencing powers. And, especially in the federal system, prosecutorial sentencing power is very hidden, not subject to any defined legal constraints or review, and only subject to very attenuated democratic control, I worry more about its misuse AT SENTENCING than I worry about misuse of judicial sentencing power which has to be exercised on the record and is subject to legal constraints and judicial review.

This, in a way, gets back to our debate about the rule of law in this context: federal judges' sentencing decisions are constrained by the rule of law, whereas federal prosecutors' charging/bargaining/sentencing decisions are constrained only really by the rule of the next Prez election. Given my affinity for the rule of law and my concerns in the federal system that the next Prez election provides very little constraint on prosecutorial sentencing work, I worry about doctrines (like MMs) that functionally increase the power of those only regulated by rule of the next Prez election when it takes power away from those subject to the rule of law.

This is why I think my tax hypo/question brings all this home usefully for everyone: would we be comfortable with a world in which any/all of our federal tax liabilities were determined by executive officials behind closed doors based on their unexplained judgments of what was fair and effective for us to pay each year, or do we prefer a system of define tax laws that will define our tax liabilities subject to the rule of law.

(Notably, folks on the right were quick to complain about the "IRS scandal" involving executive officials taking an extra close look at right-leaning groups and their tax liabilities because few like the rule of men over the rule of law when it impacts their interests. And because I think all Americans should have a vested interest in the freedom of all other Americans, I likewise favor sentencing powers subject to the rule of law over the rule of (even well meaning) g-men.

Posted by: Doug B. | Dec 19, 2013 11:49:15 AM

How about making the a representative of the correctional agency a party to plea bargains? The idea would be to get all of the State's correctional objectives on the table.

Posted by: Tom McGee | Dec 19, 2013 12:53:29 PM

Doug --

Very briefly, to the extent MM's and other forms of determinate sentencing adopted in the 1980's were designed to increase executive branch power relative to that of the judiciary, there is not a thing wrong with that.

Crime massively increased when the judges were having their way with brain-dead leniency in the Sixties and Seventies. The public was rightly fed up with the disastrous results of uncabined judicial power, and voted to shift the balance.

Incarceration went way up, crime went way down.

The public is interested in vindicating their right to FDR's vision of freedom from fear. They were not getting, and will not get, that vindication from judges like Weinstein who can't say enough sympathetic things about CP distributors.

MM's are constitutionally sound, as has been held again and again. That being the case, the remaining question is whether they are wise policy for the public. The public prudently has not forgotten what happened when judges ran wild, and does not want a return to it. Having less crime is to be preferred to having more. If Branch A sees this better than Branch B, and acts more effectively to achieve it, Branch A has earned the power shift toward it.

Posted by: Bill Otis | Dec 19, 2013 5:55:00 PM

actually bill this is completely wrong! IF done after plea negoations break down!

"Where the prosecutor is charging something that the defendant actually did, and the evidence was legally obtained, that BY DEFINITION is not prosecutorial abuse. A difference in charging treatment based on a non-suspect classification (like the prosecutor's assessment of the defendant's attitude, true contrition and cooperation) has NEVER, EVER been thought to be invidious or abusive -- because it isn't."

Sorry bill but at that point it become blackmail and text book abuse.

If the DA has charges he/she thinks are real and deserve to be charged. CHARGE THEM. Not wait a year or two for plea talks to break down and THEN file.

If the DA thinks they have a chase. Press the charges ALL of them and take that sucker to trial.

Otherwise DROP IT!

Posted by: rodsmith | Dec 19, 2013 11:40:23 PM

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