July 11, 2014
Second Circuit finds unreasonable probation sentence based on "cost of incarceration"
A helpful reader made sure I did not miss while on the road an interesting Second Circuit opinion in US v. Park, No. 13‐4142 (2d Cir. July 9, 2014) (available here), concerning reasonableness review and a sentenced reduced based on the cost of imprisonment. Here is the heart of one part of the per curiam panel decision:
After a review of the record, we conclude that the District Court committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons. First, the only sentencing factor the District Court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down. As the Court clearly announced, “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that its sentencing decision was based solely upon this consideration, the Court then rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.” The Court also stated that if the Court of Appeals were to reverse, it would “consider all of these factors” at resentencing, clearly indicating that it did not consider the relevant factors in the first instance. The Court therefore committed procedural error by refusing to consider the § 3553(a) factors in deciding what is an appropriate sentence.
Second, and equally problematic, is that the cost of incarceration to the government—the Court’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes. We agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing factor can reasonably be read to encompass the cost of incarceration. Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in § 3553(a).
Park is a must-read for post-Booker sentencing fans because it includes lots of important phrases about both procedural and substantive reasonableness review. The Park opinion also talks up the importance of deterrence in one white-collar sentencing, noting "general deterrence occupies an especially important role in criminal tax offenses, as criminal tax prosecutions are relatively rare."
July 11, 2014 at 09:24 AM | Permalink
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From an empirical point of view, imposing more severe punishment for a crime is not a particularly effective way to deter crime. See, e.g., Wright, Deterrence in Criminal Justice: Evaluating Certainty Versus Severity of Punishment, The Sentencing Project November 2010:
While the criminal justice system as a whole provides some deterrent effect, a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits. Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.
In other words, if in fact criminal tax prosecutions are relatively rare, then (contrary to the 2nd Circuit's assumption) imposing a sentence of incarceration rather than probation in Park's case, or even in all tax prosecution cases, will have little if any deterrent effect(s). Bottom line - if Park's sentence was unreasonable, it is not because it was too lenient.
Posted by: Mark | Jul 11, 2014 10:33:54 AM