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May 27, 2007

What's the matter with Kansas .... rape sentencing?

In Arizona, Morton Berger is serving a 200-year sentence for downloading the wrong kind of porn.  In Georgia, Genarlow Wilson is serving a 10-year sentence for an act of consensual oral sex between two teenagers.  But in Kansas, according to this hard-to-believe AP story, a "Topeka man convicted of repeatedly raping and sodomizing a 14-year-old girl was sentenced to three years probation, rather than nearly 13 years in jail."  This seems like a sentence that is much too lenient.

To get a fuller understanding of this notable state sentencing, one needs to read this more complete article from Topeka Capital-Journal.  The article indicates that the victim was in a sense "dating" the perpetrator, but the age difference is still extreme: the perpetrator was 38-years-old and should know full well the illegality of repeatedly having sex with a 14-year-old girl. 

The Topeka Capital-Journal article provides this (not especially satisfying) account of why such a lenient sentence was imposed:

[Shawnee County District Judge Matthew] Dowd said he departed from sentencing guideline based in part on Cisneros having "massive depression" at the time of his alleged crimes.  Dowd said Cisneros was being treated with medication and psychiatric therapy.  The judge also said Cisneros had shown a history of having steady employment.

"I felt he had a good chance of rehabilitation, based on family support," Dowd said. "Plus, I felt there was no permanent, severe damage to the victim.  She said that, too."  As a condition of his parole, Cisneros is to continue with his psychiatric treatment and medication and is to have no contact with the victim.

These rationales might sensibly support a prison sentence of less that 13 years, but I can't see how "a good chance of rehabilitation" justifies a probationary term.  The DA has vowed an appeal, and I would expect and hope that a Kansas appellate court will demand some prison time.

May 27, 2007 at 09:29 AM | Permalink


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Tracked on May 27, 2007 2:20:27 PM

» Disparity in Sex Offender Sentencing from Sex Crimes
At the end of last week, Professor Berman at Sentencing Law Policy starts a needed discussion about how widely sentences of sex offenders can vary from state to state. The case that precipitated the post was in Kansas:A Topeka man [Read More]

Tracked on May 29, 2007 5:19:11 PM


What a moron. This guy has to get some time. Has to.

Posted by: federalist | May 27, 2007 11:28:53 AM


If this were a sentence out of the rhelm of "moral panic" and was for a different crime under federal law, would you then be praising the court for exercising its discretion under 3553(a)?

If the gender roles were reversed and it was a woman so sentenced, would you still be so adamant?

I don't not argue one way or another what the sentence should be, but find it interesting that Steven K. Erickson at Crime and Consequence appears to take a more objective view of the issue, which is not to guess what Mr. Erickson's opinion might be in this case.

Whatever this man's sentence should be, the "moral panic" over sex offenders amounts to wave after wave eroding a foundational cornerstone of our Constitution, usually under the color of regulation. This panic, as suggested in your recent technocorrections post on GPS implants, will spread like a 1984 meme to other cases that are not "the worst case ever."

Once that door is open, the government will not be satisfied until they can drive tanks through it. And that door is open now.

Posted by: George | May 27, 2007 12:21:23 PM

There has to be more going on. Perhaps the "victim" was reluctant to testify?

I'm not sure I would "hope" that the appellate court would remand with an order for jail time, but I wouldn't be surprised.

Posted by: Gideon | May 27, 2007 12:29:02 PM

According to Wikipedia, the age of consent in several countries is 14 -- including advanced countries such as Canada (though they are talking about raising it), Austria, Iceland, Italy, and Portugal. Furthermore, it is 13 in Spain, and in Germany it is 16, but the statute also says that if the victim is 14 or 15, "the court may dispense with punishment pursuant to these provisions if , in consideration of the conduct of the person against whom the act was directed, the wrongfulness of the act is slight."

So, it is not clear to me that the court's decision was wrong. That said, considering the political climate on this issue in the US, I agree they will likely be overturned on appeal.

Posted by: William Jockusch | May 27, 2007 1:30:58 PM

George: if this was a low-level non-violent drug deal by an otherwise upstanding veteran who admitted wrong-doing and expressed remorse while pleading guilty, I would be praising a probationary sentence.

But this was a mature adult man having sex repeatedly with a young girl. And, as the Topeka article details, "Cisneros had pleaded not guilty to 17 offenses that included aggravated indecent liberties, criminal sodomy and rape. A 12-person jury found him guilty on each charge." Even a two-month sentence on each charge --- which still seems too low for deterrence purposes --- would mean at least 3 years locked-up for this guy.

Also, if this was a 38-year-old woman repeatedly having sex with an eighth-grade boy, I also would want there to be some prison time for general deterrence purposes.

Posted by: Doug B. | May 27, 2007 1:31:30 PM

Professor, again, I don't argue one way or another on what the sentence should be, and your argument for prison is as good as any. But unless I misunderstood, you have consistently argued that the sentencing judge knows best and should have the authority to exercise his/her discretion, even in non-veteran cases. There is likely more to this case than the sound bite headlines would have us believe, like in this article:

He said his daughter later sneaked away at night to meet Cisneros.

That doesn't sound like what we normally think of when we think of rape. Granted, an age so young can be rape even if consensual, but the article slants it by appealing to our traditional perception of rape, which is what I at first assumed.

You can apparently hear from the father himself here, in the comments, and no one can blame him for his anger. Bill O'Reilly will likely latch on to this, spin it on the no spin zone, call for removal of the judge, and use it to further promote his police state ideology. That is why I object. Alarmist headlines are never more factual and reasoned than a judge's opinion rendered after having heard all the facts. Indeed, the more alarmist the headline, the more it is necessary to read the entire record of the proceedings to know how far the judge was off, if at all, when it comes to justice.

News articles could care less about objective facts and reasoning. That doesn't sell papers. Drama does. The same drama dug us a huge constitutional hole, and we dig deeper every day in an effort to dig ourselves out of it.

Posted by: George | May 27, 2007 4:02:18 PM

George: I have never argued and have never believed that a sentencing judge should have unlimited discretion, in part because that discretion can be abused by the imposition of sentences that are much too harsh or much too lenient.

In this case, the huge age disparity, the multiple sexual encounters, and the defendant's decision to contest his guilt all strike me as important factors supporting my view that some prison time seems necessary in this case for deterrence purposes.

A 16-year-old or even a 20-year-old might understanably try to convince himself there is nothing untoward about repeated sexual encounters with a willing young teen. But Cisneros was 38 and with a girl who had just turned 14 (and thus was probably in the 8th grade!). Depression or not, he must have known better not only the first time, but all the other times, too. Even if Cisneros did not know better, his extreme recklessness merits condemnation.

Plus, the "punishment" here is essentially a medical intervention --- continued "psychiatric treatment and medication" --- that he obviously needed anyway. For those who believe society should protect young teens from much older men (even if the young teens don't always want to be protected), I think a harsher punishment is essential.

Posted by: Doug B. | May 27, 2007 4:27:11 PM

Really, Doug? You think that "the defendant's decision to contest his guilt" by pleading not guilty and going to trial counts against him at sentencing? How hypocritical are you? You lambast the federal government's trial penalties/"acceptance of responsibility" factors. Yet, when this guy - facing the potential of a huge prison sentence - has the audacity not to roll over for the government, you're all in favor of punishing him for it? Makes no sense.

Seems to me that a pedophile gearing himself up by looking at massive amounts of child porn is a lot more dangerous, and a lot more worthy of prison time, than this guy.

Posted by: Anon | May 27, 2007 4:54:43 PM

Professor, again, your argument is convincing and I'm not disagreeing with it, other than it is based on news accounts, like the "too short" for prison meme that was fundamentally false, though still cited today by the tough on crime crowd. Such is the stuff "moral panics" are made of.

Our difference of opinion rests on the reliability of the news reports, which I won't believe until confirmed. It would take a great deal of searching, perhaps hours, to discover if there are any facts to dispute this meme, if it is no more than a meme. Even the prosecution's motion for a longer sentence, though strongly slanted, would be far more reliable.

Posted by: George | May 27, 2007 5:16:57 PM

Anon: I am not against a sentence discount for pleading guilty as well as an even greater discount for acceptance of responsibility. In contrast, in cases where guilt would seem to be beyond doubt as a factual matter --- and the decision to contest guilt will require victims to have to go through the public agony of a trial --- I think the decision to contest guilt is a valid aggravating factor.

Please understand the nuance in my position. A severe trial penalty seems constitutionality worrisome, especially where guilt may be reasonably in doubt. In contrast, a decision to put a victim through the harm of a trial for no obviously sound reason, seem to be a valid aggravating factor (at least a little bit).

Posted by: Doug B. | May 27, 2007 5:38:14 PM

This scenario does present an interesting dilemma. We often hear from clients that some of other fellow inmate received a substantially lesser sentence for essentially the same crime. There are people convicted of murder that get 25 years and then there are those that get 60 or even death. These are all products of the inherent discretionary authority of the judge and if we want that discretionary authority to continue, we have to swallow these pills.

On the other hand, common sense dictates that for someone charges with so many offenses and of such a nature, some period of incarceration is warranted.

I don't know, there probably isn't a clear answer.

Posted by: Gideon | May 27, 2007 7:53:43 PM

So Doug, who gets to decide when a defendant is not only guity, but SO guilty that he should be punished for exercising his constitutional rights? The sentencing judge? The same judges who play judge, jury, and executioner in the federal system - deciding, for example, that a federal probationer has committed a state-law crime, thus violating his probation? You think that the latter is so constitutionally problematic you've asked the Sup. Ct. to get involved, but the former - making an ad hoc judgment on who's just a little guilty and who's a lot guity - is OK? That's nonsence.

This is a little far afield from the initial point - maybe this guy deserved to go to prison, I don't know. But his decision not to roll over for the government should have NOTHING to do with the equasion.

Posted by: Anon | May 27, 2007 10:32:54 PM

Professor, now I'm even more confused. Do you know if the girl testified? Maybe she refused to. Maybe the prosecution skirted the confrontation clause by using her statements to the police. Or maybe they relied on his confession and some emails or something as enough evidence. The judge evidently didn't believe the trial traumatized her, though it can with some victims.

Most confusing is your argument on exercising the right to trial when the guilty exercise that right. The implication is the right to trial is really nothing more than a privilege, like a driver's license, that if abused can be punished with suspension or other sanctions.

Did the signers of the Constitution intend this bifurcated interpretation of the right to trial depending on if the person was guilty or not? Or was the right to trial an equal right for everyone, including the guilty? I've never tried to research this question and the answer might be interesting.

Posted by: George | May 27, 2007 10:54:30 PM


While your criticism of Doug's analysis re: acceptance of responsibility discounts was perhaps a bit over the top, I agree with your conclusion and your analogy to the Faulks case, which Doug and I worked on together. I personally am against a penalty "discount" for pleading guilty/accepting responsibility, as there is no hard data to suggest that "accepting responsibility" is a reliable indicator of recidivism or future dangerousness (particularly where the defendant knows that by "accepting responsibility," he might get a shorter sentence). I think that the argument that pleading innocent can be an appropriate aggravating factor in cases where the defendant is "guilty beyond all doubt" is a poor one, unworkable in practice, and has no constitutional basis.

That said, I sympathize with Doug's softer positition that refusing to plead out might be an appropriate aggravating factor in a case where the defendant's intent is to put the victim through the public agony of confronting her perpetrator as a witness at trial. In such circumstances, the defendant may be viewed as attempting to intimidate the state's key witness, which has long been viewed as a serious aggravator and a cause for forfeiture of the defendant's confrontation rights.

I think that, to the extent a defendant's exercising of his trial rights is for this type of socially deviant purpose, we might make it an aggravator. Critically, the aggravator would not be simply for the mere exercising of the trial rights. Rather, it would be for the malicious *intent* behind it. I disagree, however, that it should be the *trial judge* (or any judge, for that matter) who should pass on the question of the defendant's intent. Instead, I think it should go to the jury. The jury would not be asked whether the defendant is *so guilty* that there was no good reason for him to go to trial. Just as a plaintiff who has been given a great settlement offer is entitled to his day in court, so is a defendant (even the most guilty ones). Rather, the jury would be asked whether there was malicious intent behind him refusing to plead out.

Now, the main problem is that, at present time, the trial judge in the federal system is allowed to make all of these various findings of fact as a result of the Booker remedy. However, this is where I hope that Rita/Claiborne either provide the fix or lay the seeds for it. To the extent a sentence is *ever* reviewable by an appellate panel, the trial judge should be allowed to *legally base* his sentence *only* on the facts found by the jury. That is, the appellate panel, in reviewing the sentence, should pretend as though all other facts don't exist. This is the only true way that the Booker remedy doesn't make the Sixth Amendment "toothless" as Justice Ginsburg says.

Posted by: Aaron | May 27, 2007 11:59:25 PM


Brother Of Jessica Lunsford Faces Sex Charges

POSTED: 4:37 pm EDT May 25, 2007
UPDATED: 4:45 pm EDT May 25, 2007

SPRINGFIELD, Ohio -- The brother of 9-year-old rape and murder victim Jessica Lunsford was in a Clark County courtroom on Friday facing criminal charges.

Joshua Lunsford, 18, pleaded not guilty to charges of unlawful sexual conduct with a minor. The charges stem from an alleged incident that occurred in March with a 14-year-old girl outside the Upper Valley Mall.

Joshua’s sister, Jessica, was killed by her Florida neighbor, John Couey, in 2005. Jessica’s family, including her brother live in Clark County.

A judge set Joshua’s bond at $5,000.

Posted by: ZMan | May 28, 2007 2:11:26 AM

This is a great debate, but I hope everyone can appreciate the significant nuance that accompanies my views about how a defendant's decision to conest guilt at trial can/should sometimes play into a sentencing equation. My earlier comments (done too quickly) surely sowed confusions that I hope clear up here.

So, to try to explain/defend my perspectives, let me unpack inter-connected issues to clarify my vision (though I'm jamming two classes of material from my sentencing course into one long comment):

1. Generally speaking, the mere fact of seeking a jury trial to test the government's proof should not, in my view, be viewed as an aggravating factor increasing a defendant's sentence (though it often is viewed this way because of the close nexus of this mere fact to the points below). That said, there can be some trial choices that might sometimes be so malicious or harmful to the administration of justice that they can perhaps be proper aggravating considerations for a sentencing judge AFTER the defendant has been convicted.

2. The decision to plead guilty, especially depending on how and when this decision is made, should be a mitigating factor if/when it (a) shows the defendant's remorse/understanding of his wrong-doing (this tracks retributivist notions of culpability AND utiliarian likelihood of recidivism), and (b) spares victims the pain/uncertainty of a full trial and the government the full expense of using limited law enforcement resources to prove facts that a defendant does not dispute (again tracking (lesser) culpability issues, though mostly attending utilitarian crime control concerns).

Perhaps folks can understand this better (and my view that judges can/should make certan mitigating/aggravating determinations at sentencing) if I more formally link this analysis to my oft-stated offense/offender distinction:

A. Contesting offense conduct via a jury trial is a constitutional right and should not alone be the basis for additional punishment, BUT
B. Pleadinging guilty (or refusing to plead guilty in some settings) often reveals offender characteristics that can/should be considered at sentencing by a judge. As I have argued constitently, I think judges are uniquely positioned (though perhaps not uniquely qualified) to make mitigating/aggravating judgements about offenders.

In this case, Cisneros was convicted of multiple sexual offenses and I view the jury-determined offense conduct, in and off itself, as demanding for some prison time. The Kansas criminal justice system needs to send a message that depressed older men risk prison time if/when they start cruising middle schools for dates.

In addition, Cisneros did not reveal good offender characteristics because, rather than admit to his conduct and face up to what seem to be undisputed facts, he decided to put everyone through the pain/uncertainty/expense of a trial. (Here I am inferring (perhaps too much) from the reported facts. Perhaps Cisneros did not dispute the sex but asserted at trial that he thought the victim was 18 and then was very remorseful after learning the victim's true age. If these are the true facts, my view of this case would be a bit different.)

Here's another way to frame/appreciate my concerns and also my strong belief in the proper roles of judges and juries (and prosecutors): Cisneros in this case was essentially rewarded for going to trial AND losing; I doubt the prosecution would have accepted a plea deal here providing for probation. Facing a potentially long prison term offered by the prosecution in a plea, Cisneros had the right to roll the dice at a jury trial. But when the jury decides --- through a conviction on 17 separate counts --- that Cisneros is guilty as charged, he should not then still receive what would seem to be the lowest possible sentence. (Consider what the jury that convicted Cisneros of 17 counts thinks about the significance of its efforts.)

As regular readers know, I am very troubled by defendants being punished for certain conduct after going to trial AND winning through, e.g., acquitted conduct enhancements. (I have seen too many cases in which defendants go to trial, essentially win through acquittals on the main charges, but are still in jail as if they lost because a judge disagreed with the jury's judgment regarding offense conduct.)

But I am also troubled by folks escaping punishment when they go to trial AND lose. I believe the Framers did not merely wanr defendants to have 1a right to a jury trial, but also that they wanted the outcome of a jury's determinations of offense conduct at trial to have some real significance (and, in my view, that significance can/should find some expression at sentencing).

The contrast with Faulks is that she sought always to contest her offense conduct and was asking for a jury to resolve the factual issues concerning an alleged crime that she denied. I think everyone should have a right to contest consequential offense conduct through traditional trial procedures and that the outcome of those trials should be taken very seriously.

Does this clear matters up Anon et al.?

Posted by: Doug B. | May 28, 2007 7:12:10 AM

Professor Berman, first, thank you for the opportunity to discuss this. As a nonlawyer, it is impossible to express how much it means (well, not impossible since I'm expressing it now). I've learned far more about the law here than in that Business Law 101 course in college. And so far no one has called me an ignorant idiot even was I was.

Your explanation helps to understand your position. That said, I'll argue as if I know what I'm talking about. There are two potential flaws in your reasoning.

First, the Framers were of course well aware of the trials and tribulations of testifying for the prosecution against someone. They didn't want it to be easy, and the knew very well that it would be easier for some than for others and that it would be extremely difficult for some. Indeed, the more heinous the crime and the more severe the potential sentence, the more important the confrontation clause. Is this too now a bifurcated constitutional right depending on the circumstances? Is it a privilege that if abused deserves sanctions in the form of a longer sentence? Was that the Framer's intent?

Second, your argument does not consider the awesome power the prosecution has in the plea bargaining process. Some argue that the cards are so stacked that some defendants who should exercise their right to trial are afraid to do so. Did Cisneros turn down a plea agreement?

For the sake of argument, let's say this case was tried during an election year, and let's say the District Attorney was pushing hard for a Jessica's Law on the ballet and this case was a good opportunity to keep it in the news. And let's say the only plea deal offered was guilty on all counts with the max on all counts. Would you still say Cisneros abused his right to trial? Is there a line there somewhere and how would we define it?

If all the motivation on the part of the District Attorney was political, then Cisneros might have not only the right, but the duty, to take it to trial.

"I consider [the trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it's constitution." Thomas Jefferson to Thomas Paine 1789.

If the jury has that duty, why not the defendant? But this vision of the jury is no longer true, as California's People v. Williams makes clear. That means the defendant alone must protest a prosecutor's abuse of plea bargaining power for political gain.

Under this hypothetical, it would also be possible for the judge to see the politics in the prosecution and make a statement against that with the sentence. So maybe through judicial discretion the judge was reinstating some of the checks and balances taken from the jury. (If the jury was required to obey the law, and was denied any sense of jury nullification, that would leave it to the judge.)

Lastly, the apparent conflicts in the debate could be inherent in the tensions between victim's right vs. the Bill of Rights, and I agree with Candace McCoy in her POLITICS AND PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA, that many who fight for victim's rights don't really fight for victim's rights at all, but merely use that as a tool to covertly attack the Bill of Rights. What if that is true? All a defendant has is the Bill of Rights, and if penalized for exercising them, we may as well repeal them, and while we're at it, we may as well take the blindfold off Lady Justice and tip the scales of justice completely to the government's side.

Posted by: George | May 28, 2007 5:36:09 PM

OK Doug, take this hypothetical. A defendant who seems to be clearly guilty pleads not guilty and has a jury trial. The victim - let's say a child - has to testify - in fact, has to travel a long distance to testify, has to face the defendant, has to undergo a withering cross-examination by defense counsel, and otherwise has a miserable time reliving the crime. The defendant refuses to stipulate to anything or enter into any agreements with the government. And, the defendant does not offer any evidence in his defense and does not testify.

The defendant, not surprisingly, is convicted. At sentencing, however, he makes a full confession. He says he did it and he's sorry. He make a legit apology and seems to show genuine remorse.

Does any of the defendant's trial "conduct" - having a trial, forcing the victim to relive the crime, subjecting her to further publicity and embarrasment - count as "aggravating" sentencing factors?

To me, the answer is clearly no. All the defendant did was exercise his constitutional rights.

Posted by: Anon | May 28, 2007 6:49:47 PM

Aaron posted this idea:

think that, to the extent a defendant's exercising of his trial rights is for this type of socially deviant purpose, we might make it an aggravator. Critically, the aggravator would not be simply for the mere exercising of the trial rights. Rather, it would be for the malicious *intent* behind it. I disagree, however, that it should be the *trial judge* (or any judge, for that matter) who should pass on the question of the defendant's intent. Instead, I think it should go to the jury. The jury would not be asked whether the defendant is *so guilty* that there was no good reason for him to go to trial. Just as a plaintiff who has been given a great settlement offer is entitled to his day in court, so is a defendant (even the most guilty ones). Rather, the jury would be asked whether there was malicious intent behind him refusing to plead out.

This is about the most dangerous idea I've ever heard. What evidence would you use to prove intent? The strength of the state's case? Would defense counsel have to testify as to privileged communications with his/her client re: client's sincerity? Or offer his/her expert opinion on the matter?

There's simply no way to finesse this. There should be no penalty for the exercise of constitutionlly protected rights.

Posted by: Anon | May 28, 2007 6:54:03 PM

Professor Berman--I just want to clarify that, according to the Shawnee County court web site, Mr. Cisneros received an underlying prison sentence of 155 months, a presumptive sentence for a person convicted of rape with Mr. Cisneros' criminal history (i.e. none). Kansas law allows for dispositional departures for all crimes on the grid, which is what the judge did here.

But it is somewhat misleading to suggest that the judge sentenced Mr. Cisneros to three-years probation INSTEAD of prison. In fact, he received a standard underlying prison sentence. It is just that the judge believed the evidence presented justified allowing Mr. Cisneros the opportunity to attempt to comply with intensive probation in lieu of prison. I think the article you cite might mislead a reader into thinking that Mr. Cisneros has entirely avoided a lengthy prison sentence.

And as you note, the dispositional departure decision is subject to review by the Kansas appellate courts. I really don't know anything about the facts presented at sentencing in support of the departure, so I can't really comment on whether this particular departure was supported by evidence. But I think most guidelines systems (or at least those like Kansas) contemplate downward dispositional departures. It might turn out to be right or it might turn out to be wrong. But so long as you have a system that allows judges any discretion (which I think generally you support), you have to accept decisions on the edge of that discretion, don't you?

Posted by: Randall Hodgkinson | May 29, 2007 10:09:13 AM


The position I proferred -- which I never said I actually believed in -- is *far* less dangerous than the status quo in the federal system, which essentially is that pleading innocent will *always* result in a longer sentence because of the almost automatic nature of the sentence reduction to those that plead guilty and "accept responsibility."

First, as for the question of the defendant's intent in refusing to plead guilty, it would not even be an issue in the mine run of cases. Aside from sexual assaults, murders, and perhaps some battery cases, I can't think of many instances where the defendant could plausibly be trying to intimidate the state's key witness.

Second, the question of intent is something that juries decide all the time. I don't see why it would be a huge deal to have a bifurcated trial process where, at the sentencing phase, the prosecutor seeks to argue that the defendant attempted to intimidate the state's key witness and did it by, among other things, refusing to plead out.

Is this not a *better alternative* than having a virtually across the board rule that those who invoke their trial rights will get more severe penalties? Furthermore, to the extent that witness intimidation is a crime in and of itself, the potential middle-ground solution I've proposed isn't groundbreaking at all. At present, a prosecutor could bring a new action against the defendant for witness intimidation and all of the same questions of intent would be presented.

Finally, let me respond to Doug's prior post that an acceptance of responsibility credit is consistent with retributivist and deterrence notions of punishment. I agree *in theory* but disagree in practice. First, I don't think there is any way for judges or juries to consistently accurately gauge the sincerity of a defendant's apology. Second, I'm not convinced that a defendant's apology provides any catharsis to the community, such that an apologetic defendant is less deserving of retribution. Third, I'm unpersuaded that retributivist notions of justice should even be part of our punishment system. It seems to me that modern notions of "retribution" are more accurately construed as notions of *general* deterrence. There are some exceptions -- murders, rapes, crimes against children -- but for the most part I don't think that society as a whole is concerned with "getting even" with criminals. Fourth, to the extent that we're concerned with deterrence, there is *no evidence* that defendants who are apologist *at sentencing* are any less likely to reoffend in the future. Instead, remorse should be a factor -- if at all -- at a parole/early release stage that come much further down the line.

Posted by: Aaron | May 29, 2007 10:09:21 AM

Interesting is the variance in sex crime sentencing, in this case involving multiple offenses and actually a victim receives little sentence. While many states (mostly in the south) sentence 10 plus years to victimless internet cases?

Posted by: John | May 29, 2007 7:11:45 PM

The DA was asking for a minimum of 24.5 years (147 months consecutive to 147 months).

That's some prison time.

Again, I'm not questioning what the sentence should be for Cisneros. My questions are broader and more fundamental, and more off topic. Whether Cisneros got probation, 5 years or all 24.5 makes no difference.

Let's say Mike Nifong was prosecuting the Duke lacrosse players for political reasons, and let's say the case was before the use of DNA evidence.

Scenario 1: Somehow the players get off with acquittal.

Scenario 2: Nifong builds a fairly good circumstantial case, and after long and troubled deliberations, there is a hung jury.

Scenaro 3: Nifong builds a better case for the second trial, and wins a conviction.

Scenario 4: Nifong builds a perfect circumstantial case on the first trial, and wins a certain conviction.

Should any of the defendants be punished for exercising their right to trial in any of the scenarios?

Do the political motives of the DA ever matter? If they do matter, should the degree of certainty in the evidence ever prevent defendants from asserting their right to trial as in scenario 4 because they know it is a political prosecution?

In other words, why should the overwhelming evidence in scenario 4 prevent the defendants in that trial from exercising their rights equally to the defendants in scenarios 1-3?

And since we know the players were innocent, does that make any difference? If so, why should it? The DA's motives were the same, the evidence was the same, only the degree of certainty in guilt was different in each scenario.

Posted by: George | May 30, 2007 3:10:28 AM

pretty simple you are all making this to hard if someone rapes a child you kill them then they dont ever do it again or to anyone else K.I.S.S = keep it simple stupid there is no and i mean no excuse for raping anyone exspecialy a child!

Posted by: spark | Dec 22, 2009 11:50:03 PM

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