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March 20, 2017

Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster

A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard,  No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana.  The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs.  His dissent concludes this way:

To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

March 20, 2017 at 09:41 PM | Permalink


Posner is OK. He mentions rent seeking in his book on law and economics.

The defendant stole $200,000. The question today is one of arithmetic. If his medical care will exceed that value over 24 months in prison, then the tax payer is being punished, not the defendant.

Posted by: David Behar | Mar 21, 2017 8:05:15 AM

In NO way is the BOP's Administrative Remedy Process -- a 6-months-plus trip I call the Long, Slow No -- an adequate remedy for the BOP backing out of this medication. Where these medications are essential but denied, inmates can literally die while they are waiting for correctional bureaucrats to push paper. I look forward to the case where I can actually see, and likely challenge, the BOP's actual, provided medical care and outcomes compared to its assurances that it can treat anything, any time, anywhere.

Posted by: Jay Hurst | Mar 21, 2017 9:09:24 AM

La majestueuse égalité des lois, qui interdit au personnes saines comme au malades d'escroquer!

Posted by: Boffin | Mar 21, 2017 8:03:35 PM

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