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October 28, 2006

Why isn't there a prior good works guideline?

Another high-profile case highlights yet again the import and impact of prior good works at sentencing.  As this article details, in Connecticut yesterday, former Middletown mayor Stephen Gionfriddo received a below-guideline for stealing from clients because "Judge Christopher Droney credited Gionfriddo's 24 years of public service in deviating from the guideline."  Even higher-profile recent sentencings — those of lawyer Lynne Stewart and Enron's Jeff Skilling — spotlight that, after Booker, some defendants are now getting huge breaks for prior good works, while others are getting no credit at all.

As I stressed when discussing my efforts for a defendant with nearly two decades of honorable military service, all structured sentencing systems have formal guidelines for enhancing sentences based on prior bad deeds through various (often intricate) criminal history enhancement.  The federal sentencing guidelines, for example, devote all of Chapter 4 to regulating criminal history enhancements, and this chapter of guidelines runs more than 25 pages with lots of intricate rules about how prior crimes ought to enhance a sentence.   

Doesn't it make sense to envision and develop guidelines for crediting prior good deeds through various (perhaps intricate) "good-deeds history" guidelines?  To the extent some commentors rightly are concerned about disparity from encouraging judges to consider prior good deeds, the proper response is to develop guidelines, not to generally forbid consideration of this valid sentencing factor.  (Critically, both retributivist and utilitarian theories of punishment would support the relevance of sentence reductions for, say, prior honorable military service or an impressive record of charitable service.)

So why hasn't the US Sentencing Commission ever developed guidelines for prior good deed reductions?  I am not calling for a whole chapter on the topic (like the prior bad deed guidelines that comprise Chapter 4).  But a few pages might be nice.  And, especially given what we are seeing after Booker, this sort of guideline seems essential to foster greater consistency in sentencings nationwide.

October 28, 2006 at 11:27 AM | Permalink


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The first set of advisory guidelines in Michigan, replaced by a later set of advisory guidelines in 1988, and now replaced by mandatory guidelines, had a "mitigating factors" component. Generally, it worked to reduce the guidelines by one level, as to either the offense variables, or the prior record variables.

Posted by: Greg Jones | Oct 28, 2006 11:56:32 AM

I find your proposal interesting; particularly in light of the fact that prior good deeds could also be used to aggravate a sentence. Sounds odd, yes, but hear me out.

If a court is sentencing an individual (much like the mayor in the CT case) for criminal conduct that was a violation of the public trust; say a hypothical mayor taking bribes for city contracts. Here, I can see the decision to aggravate a sentence, or maybe aggravate is the wrong word, but at least that the years of service be used against the defendant. Here's why: the defendant as a long time public servant knew better and violated the long time trust of the people in committing the crimes.

This idea comes to mind in light of a lawyer disciplinary proceeding from AZ several years ago. A prosecutor was disbarred for prosecutorial misconduct. One of the things that the prosecutor argued to the licensing board and the state supreme court to mitigate his discipline was that he had served the community as a faithful and effective prosecutor for over 20 years. The court ultimately turned this against the prosecutor stating that his many years of service was not mitigating to the penalty (disbarrment), but actually aggravating because as a career prosecutor he should have known the egregious nature of his conduct, and therefore had no argument of mistake due to long hours, stress, etc. his experience limited his ability to argue he just screwed up -- he was actually held to a higher standard because of his "years of good service."

So, what then would be wrong with a sentencing court from making the same finding in a criminal case. That a person with a long history of public service or "good deeds" knew better, and in doing so violated the public trust and needs to be appropriately sentenced for that violation.

Just some thoughts.

Posted by: Tim | Oct 28, 2006 4:02:32 PM

First off, I have always had a problem with enhancing sentences based on prior criminal conduct for which a defendant has already served time and paid his debt to society. A second rape should not be punished more severely than a first rape, although I'm sure most people disagree, especially when phrased so bluntly. Needless to say, I am thoroughly opposed to using prior bad acts of which a defendant has not been convicted (much less acquitted, as is done in federal court!).

However, I have three problems with sentence reduction due to previous good deeds.

First, what is the burden of proof in establishing a prior good deed? At least with a previous criminal conviction it was presumably established beyond a reasonable doubt. If a defendant says he did X and Y good deeds, what is the burden of establishing that? What if it is only a good deed like taking care of your sick mother which may not have concrete documentation/proof? People with a lot of friends and family will likely have a much easier time proving up the "fact" that they previously did "good deeds" than people with few friends and family. To that extent, it's unfair and will cause sentencing disparity.

Second, "good deeds" are relative. As someone pointed out previously, signing up for the military in time of peace is not necessarily a good deed. If they waived payment, funds for college, and all other benefits, then I suppose it would be unquestionably charitable. One man's good deed is another man's sin. A prior bad act is much less subjective.

Third, if this is permitted, religious people will milk this system for all it is worth, causing "people of faith" to receive lesser sentences than more secular folks. It will inject religion into sentencing which is certainly a BAD thing. Christians, being the people most prone to flaunting their religiosity, will rattle off all the things they've ever done in the name of their religion/Jesus to show why they should get a lesser sentence... "I converted X, Y, and Z... I have a Jesus fish on my car... I tithed 10% of my income to my church each year for the past 5 years... I organized my church's bake sale... I fed the homeless (while forcing them to read the Bible in exchange for food so I could feel like a good Christian)...." Since a majority of federal judges are conservative christians, if permitted to mitigate a sentence based on such factors, christians will all end up getting probation while our prisons become overcrowded with the "unsaved" secular hell-bound.

I realize this last issue is more cynical than the first two, which are more practical problems. But I have no doubt that, if permitted, this is what would happen. To an extent, our system is already like that. I practice criminal defense and I've seen a lot of sentencings, and I can't recall one where a defendant did not mention "God" (if not "Jesus") at least once. If we affirmatively endorse "good deeds" as a means of mitigating a sentence, get ready for a full blown religious resumé presented at each and every sentencing. And for those who are atheists... get ready for prison.

Posted by: bruce | Oct 28, 2006 7:13:06 PM

Aren't prior good works supposed to be considered under 3553(a) already?

Didn't work in our case. Over 10 years of military service and the judge accused him of "trying to wrap himself in the flag" when it was brought up for sentencing.

Posted by: Shelly | Oct 29, 2006 10:14:25 AM

3553(a)(1) does state:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

shall be considered in determining sentence. That doesn't preclude positive characteristics for mitigation, especially when read together with the parsimony provision.

Posted by: | Oct 29, 2006 12:36:37 PM

Tim -- When talking about rape you have to say X is more serious than Y, not Y is less serious than X. You'd get a different response to "the first rape is just as bad as the second" compared to "the second rape is no worse than the first."

One of the goals of putting people in prison, or executing them, is to prevent them from committing crimes while they serve their sentence. That goal is served by increased punishment for a second offense. Somebody who commits two crimes is more likely to commit a third.

The courts of my state refuse to give wrongfully imprisoned people credit against sentences for crimes committed after the wrongful imprisonment because that would allow people to commit crimes without punishment. If you agree with that policy, you should have second thoughts about determinate credit for good deeds.

I don't see the difference between giving 10% to charity because God said so or because I'm a nice guy. If I do it for the tax deduction then I should get credit for 7% (the net donation assuming a 30% tax rate).

Posted by: John Carr | Oct 29, 2006 3:19:29 PM

Whoops. That's a reply to bruce, not Tim.

Posted by: John Carr | Oct 29, 2006 3:20:55 PM

That's a good question--how should we sentence school teachers, military, and others who are quite literally public servants?

Pete Rose was sentenced to work at the inner-city public school at which my mom taught. What kind of community service could they give people who already taught there?

One of my classmates in law school was sentenced to work at the public library that employed my husband. How do we sentence librarians? (Put them in a noisy room? Allow patrons to reshelve their own books?)

A guy I grew up with was indicted for embezzling funds from the charter school he founded. While I can’t believe he's guilty, he faces 23 years (about 1-2 years per $1000 he is alleged to have embezzled). Unreasonable? Or more reasonable, given that he was a role model?

We will save for another day the fact that the state auditor trying to nail him is running for AG, and that the state supreme court upheld the constitutionality of charter schools so opponents have to find new weapons.

Posted by: Anne | Oct 31, 2006 9:20:43 AM

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