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January 28, 2014

You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?

22_Sister-Megan-Rice-300x231The question in the title of this post is based on this notable Reuters story, headlined "Activists face sentencing for Tennessee nuclear facility break-in." Here are the interesting details, with emphasis added concerning the recommendations of the federal sentencing guidelines:

An elderly nun and two other peace activists are set to be sentenced on Tuesday on their federal convictions for damage they caused breaking into a Tennessee defense facility where enriched uranium for nuclear bombs is stored.

Sister Megan Rice, Michael Walli, and Greg Boertje-Obed admitted cutting fences and making their way across the Y-12 National Security Complex in Oak Ridge, Tennessee, in July 2012, embarrassing U.S. officials and prompting security changes.

The three were convicted by a federal jury last May of damaging a national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.

Federal sentencing guidelines call for Rice, 83, to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years.  The defendants have been in custody since their conviction. Prosecutors have asked that the defendants receive sentences in line with federal guidelines. The defendants have asked for lesser sentences.

Bill Quigley, one of the attorneys of the defendants, said that all three are in good health, but that Rice, who turns 84 January 31, is "freezing cold in jail."

"They're all in great spirits and they're very much at peace about being sentenced," Quigley said.  "We're hoping for significantly less time.  People are even praying and hoping they'll be released."

Defense attorneys argued in court documents that the three were "completely nonviolent" when they were arrested.  "They used the occasion to present symbolically their passion for nuclear disarmament," defense lawyers wrote. The three activists have received more than 2,000 cards and letters of support from around the world.

Prosecutors contended the break-in at Y-12, the primary U.S. site for processing and storage of enriched uranium, disrupted operations, endangered U.S. national security, and caused physical damage that cost more than $8,500 to repair.  "The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions," prosecutors said in court documents.

The activists admitted cutting several fences, walking through the complex for hours, spray-painting slogans and hammering on the walls of the facility.  When a guard confronted them, they offered him food and began singing.

I wonder how most Americans would react (especially the folks at FoxNews) if Sister Megan Rice had been caught and convicted of breaking into an uranium-enrichment facility somewhere near Tehran, and Iranian prosecutors were advocating that, at age 84, Sister Rice should be held accountable by having to spend another six years in an Iranian prison.  Of course, that is not what Sister Megan Rice did: she broke into a uranium-enrichment facility in Tennessee, and it is American prosecutors who are advocating that she should be held accountable by having to spend another six years in an American prison.  That obviously makes all the difference in the (western) world.

This recent article from Mother Jones, headlined "Nun Faces up to 30 Years for Breaking Into Weapons Complex, Embarrassing the Feds," provides a lot more background on this case.  It concludes with this explanation of the religious background for the criminal actions by these activists:

The three imprisoned activists are members of the Plowshares Movement, a Christian peace initiative founded in 1980 when the brothers Daniel and Philip Berrigan and six others trespassed onto the General Electric nuclear missile facility in King of Prussia, Pennsylvania, and hammered on the nose cones of missiles.  The movement takes inspiration from Isaiah 2:4: "And they will hammer their swords into plowshares" — the part of the plow that tills the soil. Plowshares actions typically involve the pouring of blood and the symbolic gesture of hammering weapons — in this case, the walls of the Y-12 uranium warehouse.

"They feel that nuclear weapons are the single greatest threat to God's creation that exists in the world today," [fellow activist Ralph] Hutchison says.  "They think that there is a faith imperative.  Nuclear weapons represent the ultimate anti-God.  Anything that God is for — compassion, hope, promise of a future, health, security — they think are completely contradictory to the idea of nuclear weapons."

UPDATE: This Knoxville News Sentinel article reports on the now-interrupted sentencing today:

With snow coming down and federal officials closing the courthouse early, Judge Amul Thapar, prosecutors and attorneys agreed Tuesday to delay the sentencing of three protesters who broke into the Y-12 nuclear weapons plant. They determined there wasn’t enough time to complete the sentencing before the doors closed at 2:30 p.m. on the Howard H. Baker Jr. U.S. Courthouse.

The sentencing has been rescheduled to 9 a.m. on Feb. 18. Sister Megan Rice, an 83-year-old Catholic nun, Rice, who’ll turn 84 in two days, Michael R. Walli, 64, both from Washington, D.C., and Greg Boertje-Obed, 58, from Duluth, Minn., were convicted in May on federal charges of attempting to injure the national defense and depredation of government property.

Earlier Tuesday, the judge ordered the three to pay $52,953 in restitution, waiving interest and allowing payments to be made quarterly. The costs include repairs to fences, spray washing and cleaning the exterior of the plant’s storehouse for bomb-making uranium and additional security expenses.

January 28, 2014 at 08:43 AM | Permalink

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Comments

It seems the 'heartland' case of damaging a national defense premises under the sabotage act is one with a much more malicious intent than exists here. This crime was for would-be terrorists, and the fact pattern/circumstances here are different, so the guidelines should not apply.

In an earlier post, you asked about 'must cover' sentencing topics. How about a recognition of heartland cases and where guidelines should/should not apply. This seems like a different issue than just upwards and downwards departures.

Posted by: Paul | Jan 28, 2014 9:41:45 AM

If a US citizen not officially connected with a US government effort were caught doing something like this in Iran I would have no problem with whatever the Iranian government chose to do with them.

As for what these three actually did, if someone is going to engage in civil disobedience they had better be ready to accept the full consequences of those actions, take the prison terms with pride.

Posted by: Soronel Haetir | Jan 28, 2014 9:56:03 AM

And it looks like these three are willing to accept the penalty. Which in my book makes them far more courageous than Edward Snowden, a coward who continues to claim civil disobedience while refusing to face the music.

Posted by: Res ipsa | Jan 28, 2014 10:17:38 AM

So, Soronel, you would give Sister Rice a 7 year prison sentence?

Posted by: Doug B. | Jan 28, 2014 10:19:16 AM

"I would have no problem with whatever the Iranian government chose to do with them."

So, life imprisonment. No problem? But, as to Prof. Berman's comment on that issue, if foreigners break into a country's nuclear facility, it would make sense for the country to be more concerned about it than if their own citizen did it. Also, of course, somewhat hypocritically, many will get all jingoistic about our own citizen being involved. Six years would be a bit much though. I take a foreigner in an Iranian jail and in an American jail ... a bit different.

Breaking into nuclear facilities, for whatever reason, is serious business. It is not just "embarrassing." The rationale should be factored in. When the person is over eighty years old, yes, that can be factored in. Someone 58 can be treated a bit differently. Especially for a first offense, years in prison for either is too much. But, for the younger people, a short prison term would not be obscene or anything.

Posted by: Joe | Jan 28, 2014 10:38:18 AM

Prof. Berman,

At $8000 damage I would execute all three. While I am willing to give vandalism offenses a higher threshold than theft this case easily meets that hurdle. Couple that with actually taking the case to trial and I see no reason to cut them any sort of break.

Posted by: Soronel Haetir | Jan 28, 2014 11:24:12 AM

Aren't prosecutors supposed to exercise a modicum of discretion --- reasonable discretion?

It seems as though the prosecutors in this case forgot to do so.

Posted by: Will Swanson | Jan 28, 2014 12:25:56 PM

Nun dare call it treason.

Posted by: Liberty1st | Jan 28, 2014 1:40:27 PM

Res ipsa makes the excellent point that the whole point of civil disobedience is to suffer the punishment. This is supposed to shame the punisher.

Below-guidelines sentences are now given in about half the cases, and this will be among that group, as every one of us knows. All the breast-beating is just another case of faux outrage, one of the Left's specialties.

In this instance, I would employ one of the punishments Doug often supports. I would give modest jail sentences to be served; three years' probation with the warning that they'll serve all of it if they do it again; require full restitution; and impose an order that they spend half a day outside the facility wearing signs that say, "American nuclear power helps deter terrorist states."

Shaming works both ways.

Posted by: Bill Otis | Jan 28, 2014 1:42:59 PM

I was with you, Bill, right up to the forced political speech. Would you be OK with an abortion-clinic vandal being sentenced to wear a sign that said "abortion is a woman's legal right?"

Posted by: Jonathan Edelstein | Jan 28, 2014 2:20:42 PM

Faux outrage is a "specialty" of the right wing too. The sign is misguided.

But, like Jonathan Edelstein, I'm with Bill most of the way. You know, give the devil his due when deserved. ;)

Posted by: Joe | Jan 28, 2014 2:51:57 PM

Bill, to clarify, you favor way-below guideline sentences in this case along with full restitution and shaming. Too bad you are not really the Wizard of Federal Prosecutors, as the ones still working this case have called for very lengthy prison terms consistent with the applicable guidelines.

In light of this advocacy, I wonder if you think this case could/would have justified a departure in this pre-Booker days. I ask because I believe you advocate a return to mandatory guidelines, though I assume that includes the traditional pre-Booker departure discretion. But pre-Booker departures required extraordinary circumstances, generally speaking, and thus I am curious to get a sense of your view as to whether you think this case involves extraordinary circumstances.

Posted by: Doug B. | Jan 28, 2014 3:36:46 PM

Jonathan Edelstein --

Where have you been?

"I was with you, Bill, right up to the forced political speech. Would you be OK with an abortion-clinic vandal being sentenced to wear a sign that said "abortion is a woman's legal right?"

Forced speech is a staple of shaming punishments of the sort Doug seems to like. The punishment I propose is similar to a thief's being sentenced to wear a sign outside a store he robbed saying, "I stole from this store, even though stealing is wrong."

There are many, for example those in the Occupy Movement and their ideological backers, who view "stealing is wrong" as political speech. Their whole deal is that propertied interests and fat cats are ruining the country, that property rightly belongs to the dispossessed, and therefor that stealing assuredly is NOT wrong. As they see the world, stealing is very right, in addition to (or as part of) being a political act.

Too bad. I don't know of a court in the country that would disapprove, as part of an otherwise legal sentence, the requirement that the thief wear a sign saying stealing is wrong.

Same deal with the nuns. No one is requiring them to actually believe that US nuclear power deters terrorist states. But, like the thief, they can (in my view) be required to wear a sign pointing out the wrongheadedness of their criminal behavior.

Still, if you have problems with that particular sign, I wouldn't mind one that said, "American military power helped save the world from fascism." These ladies need to wake up to the fact that American force and the threat of force are not Satan's spawn. Encouraging them to understand this will serve the standard penological goal of reducing the prospect of a repeat offense.

For that same reason, I would have no problem whatever with an abortion bomber's being required to wear a sign that said "abortion is a woman's legal right."

Whether one likes it or not, (1) abortion IS a woman's legal right, (2) American nuclear power DOES deter terrorist states, and (3) American military power DID HELP save the world from fascism.

And -- on a different but related point -- isn't the whole point of genuine rehabilitation to get the offender to change his mind about the things that prompted him (or her) to commit the offense in the first place?

Posted by: Bill Otis | Jan 28, 2014 4:35:18 PM

Doug --

"Bill, to clarify, you favor way-below guideline sentences in this case along with full restitution and shaming."

Correct.

"Too bad you are not really the Wizard of Federal Prosecutors, as the ones still working this case have called for very lengthy prison terms consistent with the applicable guidelines."

Yup, it's all true. I do not uniformly agree with the judgments of all the thousands of federal prosecutors who answer to Eric Holder. Did I ever say otherwise?

"In light of this advocacy, I wonder if you think this case could/would have justified a departure in this pre-Booker days."

Yes, I do, and I might add that it's extremely likely that I promoted more SUCCESSFUL requests for pre-Booker downward departures than every defense lawyer on this blog combined.

The general pre-Booker departure rule required the existence of a sentencing factor "of a kind, or to a degree" not considered in putting together the standard guideline range. Where you have a couple of 80 year-old (or whatever they are) nuns engaged in some airheaded, Sixties-leftover civil disobedience, then, yeah, it's an atypical, out of-the-heartland case.

Was that supposed to be hard?

Posted by: Bill Otis | Jan 28, 2014 5:05:53 PM

Bill,

I would not be at all surprised if a court of appeals were to disallow a shaming sentence of the type embodied in wearing a sign saying "Stealing is wrong.".

"I stole from this store" would be fine as it is a statement of fact but not the value judgement of saying it is wrong.

That being said, I would also not be surprised if some offenders were willing to accept such a condition as a means of avoiding incarceration.

Posted by: Soronel Haetir | Jan 28, 2014 6:08:37 PM

Bill, I do not think your account for why the guidelines should not be followed in this should be hard at all.

So why then do you think the federal prosecutors here do not see the wisdom of what you see? Do you think it is part of the Obama Administration's war against religion? Do you think it is part of a stealth war on nuns? Or could it be that too many federal prosecutors still think their job is to seek a long sentence rather than to seek justice?

Posted by: Doug B. | Jan 28, 2014 6:46:44 PM

I would wonder what kind of deal was offered and rejected before trial. If the offer was for a term of say six months to a year and these three went to trial anyway I see more than valid reasons for the prosecutors seeking these terms now.

Posted by: Soronel Haetir | Jan 28, 2014 7:16:44 PM

Doug --

"Bill, I do not think your account for why the guidelines should not be followed in this should be hard at all."

Good. It wasn't. This is an atypical case by any standard.

"So why then do you think the federal prosecutors here do not see the wisdom of what you see?"

I'd have to see their sentencing memo to answer that.

"Do you think it is part of the Obama Administration's war against religion? Do you think it is part of a stealth war on nuns?"

Nothing stealthy about it:

http://www.usatoday.com/story/opinion/2014/01/28/little-sisters-poor-contraception-mandate-obamacare-column/4970869/

http://www.foxnews.com/opinion/2014/01/24/little-sisters-poor-have-had-their-prayers-answered/

http://www.washingtonpost.com/politics/supreme-court-says-nuns-are-exempt-for-now-from-obamacare-contraceptives-rule/2014/01/24/12c7b9a0-853e-11e3-8099-9181471f7aaf_story.html


"Or could it be that too many federal prosecutors still think their job is to seek a long sentence rather than to seek justice?"

False dichotomy. Why is it simply assumed that a long sentence must be unjust? In my opinion, it would be unjust in this particular case, but there are thousands of cases where a long sentence is perfectly just. There are other cases where a short sentence is not merely unjust, but scandalous, see, e.g., United States v. Corey Reingold, (2d Cir. September 26, 2013)(available at http://caselaw.findlaw.com/us-2nd-circuit/1645241.html).

Posted by: Bill Otis | Jan 28, 2014 7:32:00 PM

If an act causes a benefit as well as a damage, the value of the benefit must subtracted from that of the damage. If it exceeds the value of the damage, then a reward is due the perps, not a punishment. What was the value of the damage here? How much would a security consulting survey contract to find the weaknesses in security have cost on the open market? So damages were around $50,000. A security survey might have cost $100,000, to prevent terrorist acts with a potential cost in the $billions.

The defendants are owed $50,000 by the federal government. They should send their bill, and sue if the dead beat feds do not pay in a timely manner.

Posted by: Supremacy Claus | Jan 28, 2014 8:35:06 PM

Bill, haven't been on this blog for months. You are still a very smart articulate man.

Glad to see that you had no problem with a light sentence for the trio.

Also I did not realize that in your day, you recommended lower than a guideline sentence
Fairly often.

I bet your students can get off the dime on arguing a case or they your on them. Good deal.

Have a nice day Bill.

Posted by: Midwest Guy | Jan 28, 2014 11:37:05 PM

Midwest Guy --

Thanks. Good to see you back.

I should probably elaborate on my support as an AUSA for below guidelines sentences. I was primarily the appellate person, and did not handle cases in district court with rare exceptions. So I did not sign any sentencing recommendations. What I did do was sit on the Substantial Assistance Committee, which consisted of a few supervisors who reviewed every potential SA motion to make sure that none was either gratuitously given or unreasonably withheld.

In that capacity, I promoted a large number of such motions. And when the government makes such a motion, it's almost always granted. That's what I was referring to when I said I thought it likely that I promoted more successful requests for pre-Booker downward departures than every defense lawyer on this blog combined.

The present case brings to mind one of the cardinal rules that -- I thought anyway -- applies to the prosecution business. The first thing you ask yourself is: Am I dealing with a criminal?

Almost always the answer was yes, because the motive was some form of venality, dishonesty or sadism. Those are things that any normal person would identify as the petri dish of criminality.

In the present case, none of those is present. Civil disobedience is its own kettle of fish. The defendant has intentionally broken a perfectly valid law, and thus deserves punishment. But the degree of punishment should be informed by standing back and looking at what you're actually dealing with.

Now there will be those who maintain that this gives prosecutors too much discretion, but it doesn't bother me. It's the kind of discretion the Constitution contemplates, and is inevitable in any event.

Posted by: Bill Otis | Jan 29, 2014 3:01:39 AM

Bill, I just want to comment on your public shaming point.

If the sign was "breaking into nuclear facilities is wrong," I'd agree. It's directly related to the law. However, your sign is a more collateral matter and one that is directly contrary to their political beliefs. That's why a "women have a right to choose" sign is problematic while a "vandalizing an abortion clinic is wrong" sign would not be (likewise here about comments upholding the validity of the nuclear program is very different that acknowledging the wrongfulness of crime). Anyone who would see a sign like the one you proposed would take it as an endorsement of that statement, which is directly contrary to the person's political beliefs. It's a difference of kind, not just of degree.

Whether there would be a problem with a "stealing is wrong" sign rather than the famous "I Steal Mail" sign is something I don't know the answer to, but that's still different from your sign message.

Anyway, I agree that a downward departure from the guidelines in this case seem warranted based on the circumstances here not being the evil the statute is designed to remedy, the defendants' age, etc. I think the Causing more than $1000 in damage issue is one that's bigger since they did precisely what the statute is concerned about.

Posted by: Erik M | Jan 29, 2014 1:34:28 PM

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