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December 5, 2004

A Kafkaesque federal sentencing story

I have now had a chance to review the Second Circuit's decision in US v. Pabon-Cruz, No. 03-1457 (2d Cir. Dec. 3, 2004) (mentioned here), and the only fitting adjective for the case is Kafkaesque. 

Though the history of the case, not to mention the circuit court's interpretation of a federal sentencing statute, has too many twists and turns to recount here, Pabon-Cruz highlights substantively and procedurally how bewildering federal sentencing can be.  Howard Bashman provided the essentials of the case here, and the bizarre upshot now is that US District Judge Gerard Lynch — in a case which he described as "without question the worst case of [his] judicial career" due in part to the inconsistencies in federal sentencing of child pornography offenses — has discretion to impose a fine or a 10-year imprisonment term but nothing in between.

December 5, 2004 at 11:00 PM | Permalink


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On its face, the decision seems to say that the judge can impose a fine or a ten-year sentence, but nothing in between. On further reading, the Second Circuit seems to say that the trial court needs to consult the sentencing guidlines that were in effect at the time. If the guidelines mandated a prison sentence of any length, then the court must sentence the defendant to ten years. The defendant's crimes were almost certainly of the kind where *some* prison term would be required under the guidlines. Unless the judge departs substantially downward--a decision the government obviously would appeal--the defendant will end up with ten years anyway, because if he receives any prison sentence at all, the law requires it to be at least a decade. Hence, as a practical matter, it is doubtful whether the defendant gets any actual benefit from this decision. It just becomes another tragic mandatory minimum case.

I agree with the Second Circuit's analysis of the law in effect at the time the defendant committed his crimes. But as the Court notes, this analysis will apply to very few defendants, because the law has since been revised, and the "Kafka-esque" provisions are no longer there. Nobody who commits these crimes today has any prayer of avoiding a very long mandatory minimum prison sentence.

Posted by: Marc Shepherd | Dec 6, 2004 12:14:19 PM

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