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February 10, 2007

Judge Cassell assails prosecutorial leniency

The Salt Lake Tribune has a notable and telling story about a man-bites-dog sentencing development.  As detailed here, a tax fraud sentencing led Judge Paul Cassell to criticize federal prosecutors for their unjustified use of sentencing discretion.  (Usually, it is prosecutors complaining about judicial sentencing discretion).  Here are the details:

A federal judge says prosecutors ignored their own policy when they gave a lenient plea bargain to a Bountiful accountant who prepared fraudulent tax returns.  US District Judge Paul Cassell refused to go along with the deal, which called for no incarceration and no restitution for Lance W. Mercer. Cassell instead ordered Mercer to spend five months in home confinement, then five months in prison and pay $11,378 to the Internal Revenue Service.

Cassell scolded the U.S. Justice Department's tax division for agreeing not to ask for any enhanced sentences under federal sentencing guidelines.  Mercer, a tax preparer with a master's degree, had a special skill that he used to cheat the government, Cassell wrote in his order.  The accountant used his knowledge of what figures would appear reasonable to make returns "fly through" IRS processing, Cassell wrote. However, prosecutors not only declined to request a sentence enhancement based on the special-skill circumstance, they actually objected to any increase, Cassell said.

The judge noted that in 2003, then-Attorney General John Ashcroft said any sentencing recommendation by the Justice Department "must honestly reflect the totality and seriousness of the defendant's conduct and must be fully consistent with the guidelines." About the same time in 2003, Cassell noted, the Justice Department argued to Congress that judges' failure to comply with the guidelines had resulted in reduced sentences and an erosion of the deterrent value of federal sentencing policy. "The court firmly agrees with the generally stated position of the department that a sentencing system that involves ignoring the obvious facts is 'neither desirable nor capable of sustaining long-term public confidence,'" Cassell said.

I will update this post with Judge Cassell's written order once I track it down.

February 10, 2007 at 08:57 AM | Permalink


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