« Sixth Circuit keeps Apprendi from state indictments | Main | Around the blogosphere »

October 26, 2006

My amicus effort to support our troops

Back in this post in April, I noted a story about the federal sentencing of Sergeant Patrick Lett, a defendant with 17 years of honorable Army service including two tours of duty in Iraq.  There I asked whether a sentencing system that punishes prior bad deeds (via criminal history enhancements) ought also to reward prior good deeds through sentence reductions for, say, prior honorable military service.  I suggested that, especially during a time of war, a sentence reduction based on honorable military service would tangibly recognize and reward service to our country.

Half a year later, a lot has happened in Patrick Lett's case. And, through a student, I have become indirectly and then more directly involved.  Specifically, Lett ultimately received a below-guideline sentence (which allowed him to return to military service), but the Justice Department has appealed the reasonableness of his sentence to the Eleventh Circuit.  Troubled greatly by DOJ decision to appeal and its overall treatment of Sergeant Lett, I have written and just filed (with the help of great folks at Holland & Knight) an amicus brief that assails the government's suggestion that Lett's sentence was unreasonable. 

You can download the full amicus below, and here's perhaps my favorite passage:

Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."

Judge Steele, in accord with these sentiments expressed by President Bush, Attorney General Gonzales, and Justice Department officials, obviously concluded that Patrick Lett deserved a second chance and that his non-violent first offense did not merit a long term of imprisonment.  Given Lett's 17 years of honorable service to this country, which has included two life-threatening tours of duty on the Iraqi battlefields, it is hard to imagine an American more deserving of a second chance.

Download final_lett_amicus_as_filed.pdf

October 26, 2006 at 01:39 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference My amicus effort to support our troops:

» Sentencing and Military Service: from The Volokh Conspiracy
Lawprofblogging rock star Doug Berman (Sentencing Law & Policy) writes: Back in [Read More]

Tracked on Oct 26, 2006 4:51:08 PM


Great brief, and good luck to Mr. Lett. If the CA11 reverses, it should have some 'splaining to do. 2 questions, though.

1. What's the government's argument? I'm at a loss to think of what it could be other than that the sentencing judge was too quick to toss the Guidelines aside, which seems like it should be a nonstarter, at least in light of the CA11's "soft" presumption of reasonableness.

2. How much time did "time served" amount to?

Posted by: WB | Oct 26, 2006 2:42:11 PM

1. The heart of the gov't appeal is that the sentence is unreasonable because it strays too far from the guidelines.

2. Time served ended up being only a couple of days.

Posted by: Doug B. | Oct 26, 2006 3:21:22 PM

The government appeals below guideline sentences because the appellate courts reinforce (reward) this behavior. In this instance, the government's position is consistent with their position in other types of cases involving military members or veterans. Disability cases are but one example of the government's anti-military stance.

Posted by: Stanley Feldman | Oct 26, 2006 4:50:04 PM

In general, I agree that one's good works should be considered in deciding what is reasonable, and that a long period of honorable military service should be so considered. I am concerned, though, that a judge's idiosyncratic views as to what is good could produce sentences that depend as much on which judge is drawn as on what the defendant actually deserves. For example, a judge who is a gone-to-seed flower child and still hates the military from the 60s might not give honorable military service any weight at all. I think Booker intended appellate scrutiny to even out such judge-based variations, but it may not be up to the task.

Posted by: Kent Scheidegger | Oct 27, 2006 11:20:51 AM

Kent's point is extremely well-taken. I think we saw that in the Lynne Stewart case. The judge, quite clearly, was smitten with Stewart's taking up the cudgel for a number of unsavory characters. While I agree that Stewart's representation of these people is honorable, in the sense that it is an honest living and that it is good that people are willing to do that, I am not so sure any special moral weight attaches to her representation.

I think a partial solution is more of an objective test. Society has given weight to military service; society gives weight to people who are good parents etc. etc. So if we look at what society thinks generally (I know, hard to do), then we can have some "norming" of mitigation.

Stewart's representation of the unsavory, I think, falls outside of what should be mitigation. Not because her representation was unsavory, but because her motivations clearly were not to serve society, but to advance her agenda. Nothing wrong with that, but it's not mitigation either.

Posted by: Sean O'Brien | Oct 27, 2006 2:01:10 PM

I disagree with Kent and Sean, but I am watching the World Series so I will make this short. First, I disagree that a "gone to seed flower child " judge would not show consideration to someone like Patrick Lett. In fact, the judge Kent describes is more likely to view Lett as a victim of circumstances beyond his control. Second, I read the well written sentencing memo in the Stewart case and Sean is over simplifying the mitigation. One point made by her lawyers was that Lynn Stewart has been doing a form of community service all her career by representing clients at a personal sacrifice both financially and personally. Anyone who has handled an appointed case the right way understands this. Third, I don't understand the point Sean and Kent were trying to make about an OBJECTIVE test or a judge's idiosyncratic views. Isn't this the essence of discretionary sentences?

Posted by: Stanley Feldman | Oct 27, 2006 9:03:50 PM

There is always going to be subjectivity in a discretionary regime. The point is that we get some basic agreement as to what is mitigating and what is not.

As for Stewart, she advanced her radical (and arrogant) political outlook through her work. Whether or not she took on pro bono clients or not. I don't find that mitigating.

Posted by: Sean O'Brien | Oct 28, 2006 11:38:30 AM

I was one of the priveledged to have meet Srgt. Lett. His kindness and compassion for all of the soliders sticks with me. He is a wonderful person. Even on the day of deployment of his company he was right there. He was a greast asset to the Army, and will truly be missed by all. Does service to our country count for anything? One has to begin to ask themselves.

Posted by: Ramona Guzman | Jun 29, 2007 10:27:28 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB