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July 17, 2007

Thoughtful end(?) to a short sentencing story

Thanks to How Appealing, I see that the Nebraska Court of Appeals has upheld the probation sentence in a sex offense case which had garnered much attention because the trial judge mentioned the defendant's small stature to support her sentencing decision.  The AP provides this report on the state appellate ruling, which is available at this link.  Here is the main opinion's concluding paragraphs:

The PSI that was in the hands of the district judge before imposition of these sentences contains abundant and logical justification for ordering probation — the terms of which are strict and demanding — rather than incarceration.  After our review of the crimes, the sentences, and the information in the PSI, we have no hesitancy in saying that the sentences are not an abuse of discretion and, therefore, are not excessively lenient.

We have taken great care for a specific reason to detail information in the PSI, which information has not been, and would not otherwise be, available to the public and media.  Our reason for doing so is to illustrate that if the sentencing judge went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI which clearly justified the probationary sentences she imposed.  Such failure caused the trial judge's brief mention of Thompson's small physical stature to become the focus of attention, when in reality it was but a minor point. Of far greater consequence is the fact that the examination by a clinical psychologist and the results of the SAI all strongly indicate that Thompson is neither a pedophile nor a sexual predator, but, rather, that his crimes stemmed from poor judgment and a lack of impulse control.  Of equal importance is the fact that the probation officer recommended the sentences imposed by the trial judge. By saying this, we by no means minimize the seriousness of the crimes or the pain and damage which Thompson has inflicted upon his victim.  Nonetheless, the PSI reveals that he is unlikely to reoffend — and the terms of his probationary program are strictly structured to ensure that this does not happen — and he was told in no uncertain terms that he would be treated harshly if he fails probation.

Because the trial judge did not abuse her discretion in sentencing Thompson, we affirm.

I am hopeful that the appellate court's thoughtful ruling will bring an end to this widely noted case, though I suppose the state could seek an appeal to the Nebraska Supreme Court.

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July 17, 2007 at 11:57 PM | Permalink


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Thoughtful? Why is lenience to criminals always deemed "thoughtful"?

Posted by: federalist | Jul 18, 2007 12:27:00 AM

Have you read the opinion, federalist? It strikes me as thoughtful. What adjective would you use to describe it?

Posted by: Doug B. | Jul 18, 2007 12:29:29 AM

I have. The adjective I would use is "weak". The bottom line is that the court failed entirely to deal with the raw fact that the judge said that the guy "earned his way into prison", but that she was afraid to send him there because of his size. I am not unsympathetic to the judge's worry, but a person's physical size is simply not a valid factor for sentencing. Would white convicts deserve lenience because they are more likely to be victims of sexual assault inside prisons?

Posted by: federalist | Jul 18, 2007 1:11:04 AM

Why shouldn't small size be a factor in the length of the sentence? If, as you seem to concede, the smaller person is more likely to be subject to sexual assault, size is highly relevant. Or is sexual assault one of the purposes of sentenincg? Do you consider it "just punishemnt"?

Posted by: Michael Levine | Jul 18, 2007 9:21:18 AM

Federalist, I would turn your question on its head. Why is it that those in disfavoring any leniency almost always believe the sentencing world should be simple and cut and dried, with no room for thoughtful analysis and considerations of issues like diminishing returns to scale for punishment.

Posted by: Mark | Jul 18, 2007 9:53:07 AM

Federalist, why is a pro-defendant ruling always described by you as "weak" (or words to that effect)?

You, like most right-wing talking-point nuts, can't get past the comment about the defendant's size. Should the appellate court remand the case for resentencing so the judge can not say those magic words before reimposing the same probationary sentence; a sentence amply supported by mitigating factors? What a waste that would be.

Posted by: Anon | Jul 18, 2007 11:44:53 AM

Michael, I don't consider it just punishment at all. Given the realities of sexual slavery in prison, I would support the death penalty for prison gang-rapes and slavery. Moreover, if you read my post, you will find that I said that I was not unsympathetic to the judge's worry.

Anon, I believe that if you read all of my posts you will find that I don't think that all pro-defendant decisions are weak. I have noted issues with acquitted conduct aggravators and other things. Moreover, I have repeatedly said that prison beds are scarce resources and need to be used judiciously.

As for the remand issue, I find it strange, Anon, that you would decry doing things right. Usually, the pro-defendant crowd gets hopped up about any error, no matter how harmless. Here, we have a sentencing decision based on size--remember, the judge's words were that he earned prison. Presumably, but for his size, he would have gotten prison. This is simply wrong. The arbitrariness of one's height determining punishment is breathtaking. And, by the way, the very same argument could be used for being white, as white convicts are more likely to be sexually abused in prison than the average prisoner.

Posted by: federalist | Jul 18, 2007 12:24:42 PM

"Presumably, but for his size, he would have gotten prison."

This is the flaw in your argument. The appellate court determined that, notwithstanding the concerns about his size (which no one has disputed, by the way), the decision to give him a probationary sentence was reasonable. Nothing wrong with that.

Posted by: Anon | Jul 18, 2007 12:33:08 PM

Anon--uh no. The prosecution is (or should be anyway) entitled not to have sentencing decisions based on physical characteristics. That undisputably happened here. (I dont know how else you can read the "earned prison" remark.) The process was bad, and I am not sure that just because a result was reached that is supportable means that the process issue was cured.

Posted by: federalist | Jul 18, 2007 12:50:03 PM

Without mentioning Libby, federalist said, ""earned his way into prison."

Both cases are about lawful discretion.

Posted by: George | Jul 18, 2007 2:38:16 PM

Lawful discretion to base a sentencing decision on an immutable characteristic like height?

And George, I was quoting the judge.

Posted by: federalist | Jul 18, 2007 5:20:28 PM

Federalist said: "The prosecution is (or should be anyway) entitled not to have sentencing decisions based on physical characteristics."

I'll be sure to cite that logic the next time I have a prosecutor say that one of my clients deserves a longer sentence because he beat up a smaller, weaker guy.

The problem here, of course, is that the sentencing decision was not "based on" the defendant's stature. The defendant's stature was one of many factors that went into the sentencing decision, and overall the decision was reasonable.

Posted by: Anon | Jul 18, 2007 9:55:48 PM

Anon, that's silly. Of course, breaking the "pick on someone your own size" rule can get you more time. But that's a far cry from exempting an adult from prison simply because he's perceived as too small to handle life in the joint. And the overall reasonableness is not the issue. The sentencing judge's statement indicated that she would have sentenced him to prison but for his size. That tainted the decision. If a judge had sentenced a white person to no prison time because whites are more likely to be sexually abused in prison, would we be willing to hold up an overall reasonable decision? Or what if a black person is convicted of a hate crime, would we accept an overall reasonable sentencing decision if the judge said at sentencing that blacks should not be subejcted to hate crimes prosecutions? Why would the race of the person be treated any differently than other physical characteristics?

Posted by: federalist | Jul 18, 2007 11:53:22 PM

I see. So physical characteristics are irrelevant when they might help the defendant, but are fair game when they might help the prosecution.

Posted by: Anon | Jul 19, 2007 9:52:19 AM

Anon, you're being disingenuous (of course, not surprising from a criminal defense lawyer--given the job requirement of defending the guilty).

Certainly, if I attack someone who is defenseless, e.g., an elderly victim, it's the relative raw physical power between myself and the victim that is the issue, and my size, or lack thereof, in certain cases does impact the blameworthiness of the conduct. Here this guy's size does not impact the blameworthiness of his conduct.

You know, that's about the easiest explanation I can give, and I can explain it to you, I cannot understand it for you.

Posted by: federalist | Jul 19, 2007 11:00:07 AM

Doug, do you still think that the decision was "thoughtful"?

Posted by: federalist | Jul 23, 2007 1:10:23 PM

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