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August 8, 2007

First Circuit reverses another below guideline sentence

I mentioned here yesterday's First Circuit ruling on juvenile convictions as ACCA predicates, but an even more notable decision from that court came yesterday in US v. D'Amico, No. 05-1468 (1st Cir. Aug. 7, 2007) (available here).  As DotD details here, the First Circuit has "vacated a below-Guidelines sentence given to Michael D'Amico, a city councillor who was convicted of taking a bribe and lying about it."  Here are some notable passages:

While we accept the district court's characterization of D'Amico as a responsive city councillor who made worthy contributions to Quincy during his time in office, we are left with the firm conviction that the court overvalued these contributions in imposing D'Amico's sentence....

We agree with the Seventh Circuit that it is usually not appropriate to excuse a defendant almost entirely from incarceration because he performed acts that, though in society's interest, also were the defendant's responsibility to perform and stood to benefit the defendant personally and professionally. Thus, D'Amico's performance of good works as a city councillor does not support such a substantial variance from the GSR.

August 8, 2007 at 08:54 AM | Permalink


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Based solely on that factor, I think I'd agree with the First Circuit here. It's rewarding someone solely for doing their job. Like rewarding a doctor for saving lives. It's what he's paid for. Similarly, it's like rewarding someone solely because they've always been church-going. They felt it was their duty as a christian (or whatever they are) to go to church. They benefitted from going (feeling good and even superior about themselves and Knowing they'd go to heaven post-death) and thus they shouldn't be rewarded for having done it when they get in trouble.

If Brad Pitt gets in trouble, he can be rewarded for going to Sudan to help out, or whatever he supposedly does down there. He had no duty or responsibility to go there.

Posted by: brucem | Aug 8, 2007 9:41:54 AM

But if Brad Pitt feels a duty to Sudan, then it should not be taken into account at sentencing? I don't understand the basis for the distinction. Also, how would we ever know whether Brad Pitt REALLY felt a duty to go to Sudan or not.

What about your Christian-going-to-church example? What if they don't feel a duty to go to church, but do it because they think it makes other people around them feel better? Should that be taken into account at sentencing? And again, how are we ever going to decided what an individual's motivation is?

In other words, I don't get the "good works except when there's a duty" standard that you suggest. Moreover, I don't think that charitable works should play any role at sentencing. It is nauseating to me when convicted felons get friends & family to write letters talking about all the good works that the felon has performed, in hopes that the sentence will be reduced. (And it's more nauseating when a judge gives them any credence whatsoever.) Personally, I don't care about a felon's supposed good works. Good works don't make up for crimes committed against society. They don't evidence remorse. They don't evidence recidivism. They should not be part of the sentencing judgment.

I'm curious whether there's a regional aspect to the "lighter sentences for good works mentality". I've praciced in the Northeast and in the South, and the cascade of "Your Honor, he's a good guy" letters seem much more prevalent in the Northeast. Does anyone have any empirical evidence about these practices (and their effect)?


Posted by: Mark | Aug 8, 2007 10:17:48 AM

I have seen literally thousands of reference letters that are used at sentencing hearings. Very few have any effect at all. Especially ones that say he is a good guy/great family man or jail won’t do him any good (never seen one yet where someone, other than a victim, thought jail would do them any good). The only ones that matter are letters from employers saying they have work. Everyone can find someone to write them a positive letter.

Posted by: Jeff | Aug 8, 2007 11:01:10 AM

Reference letters are generally a waste. But, I think there is a deeper issue here. Everyone loves to laud people for “public service.” Heck, DAs, judges, politicians, policemen, etc. are all called “selfless” or “hardworking” people. But, let’s face it, these are paying jobs that people like to do. There is competition to be an AUSA, policeman, etc. (or a federal PD, for that matter). Judges are appointed based on their political attributes (not necessarily a bad things), and politicians are elected for political reasons. Does this make them any different than say, a computer programmer that happens to also be a rapist. What about a computer programmer that selflessly devotes his time to 3d-world causes who also happens to be a rapist?

I have to say I am disappointed in the academic discussion on this issue. Maybe it is because nobody really wants to agree with me that the rich are deemed to contribute more to society than the poor, and high sentences of rich executives are just are the beginning of a recognition that sentencing shouldn’t be about someone’s station in society but rather their particular criminal conduct.

Posted by: S.cotus | Aug 8, 2007 11:23:40 AM

Mark, I suppose my statement about "feeling a duty" was a little vague. Let me expound. All christians have a duty to go to church. All muslims have a duty to go to mosque, jews synagogue, etc. Most don't, at least not regularly. The ones who do go do it because their god requires it of them. In addition, they benefit from moral superiority and the comfort of Knowing they'll go to heaven and everyone else who doesn't go to church as much as they do will go to hell. Also, going to church sounds nice and moral but it helps nobody but the churchgoer. I am always annoyed at the "he's a churchgoing person" excuse for a lenient sentence. Why should you get a lesser sentence than I because you're a religious nut?

Ultimately, the question is, is it your JOB to do the "good deed" you claim entitles you to leniency? Brad Pitt is an actor. If his job were a social worker or a paid humanitarian with the Red Cross, then he would not be entitled to benefit from going to Sudan. It would be like me, as a lawyer, claiming to deserve leniency at sentence because I did work trying to achieve justice for people.

Posted by: brucem | Aug 8, 2007 11:29:12 AM

Jeff, "it's a waste of time." although I agree with you but why do lawyers keep insisting that the defendants give the court letters from their family and other sources?

Posted by: | Aug 8, 2007 11:48:34 AM

"Jeff, "it's a waste of time." although I agree with you but why do lawyers keep insisting that the defendants give the court letters from their family and other sources?"

It’s to limit the number of appeals by defendants claiming their defense council was inadequate.

Posted by: | Aug 8, 2007 12:39:06 PM

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