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October 28, 2008

Some sentencing questions after Senator Stevens conviction

There are so many ideas and questions bouncing in my head in the wake of US Senator Ted Stevens of Alaska being convicted Monday afternoon on all seven counts in his federal corruption trial.  Here are just a few of these questions:

1.  What will be Senator Stevens' precise guideline range as calculated by the probation office and prosecutors?  (And might there be a dispute over the guideline calculations as there was in the Scooter Libby case?)

2.  Will Senator Stevens seek a "traditional" downward departure from the guidelines based on, say, his age or other offender characteristic that the guidelines deem "not ordinarily relevant"?

3.  Which 3553(a) factors will Senator Stevens seek to emphasize if/when seeking a below-guideline sentence?

4.  If sentenced to any prison term, will Senator Stevens get bail pending appeal?  (Recall that it was the denial of bail pending appeal that prompted the timing of President Bush commutation of Scooter Libby's prison sentence.)

5.  Might President Bush exercise his clemency powers to pardon Senator Stevens or to commute his sentence?

6.  Should anyone eager for progressive federal sentencing reforms now actually root for Senator Stevens to be re-elected on the theory that he (and his many Senate friends) might now be much more sympathetic to argument that federal judges need to have broad discretion to consider mitigating factors at sentencing?

October 28, 2008 at 08:50 AM | Permalink


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Should anyone eager for progressive federal sentencing reforms now actually root for Senator Stevens to be re-elected on the theory that he (and his many Senate friends) might now be much more sympathetic to argument that federal judges need to have broad discretion to consider mitigating factors at sentencing?

Anyone who's still waiting for Senator Stevens to grow some principles should probably move on at this point.

Posted by: | Oct 28, 2008 10:46:20 AM

I think the age issue is the most interesting aspect to this case. In his post in the prior thread on compassionate release, Jim notes that "there is always a cost angle to any apparent compassion". And perhaps there should be. After all, in this case the Senator is in his mid-80s. We know that 2/3 of all medical expenses occur within the last six months of life. As a Senator, he could easily afford any necessary medical/hospice care on his own. If he's required to spend a few years in jail, the cost for his end of life care could easily be shifted from his own personal pocket to the taxpayer. How is that just?

I recognize that there are other valid theories at play, including the retributive. But wonder if anyone has seriously considered how the cost and benefits of such theories change when dealing with sentencing criminals at or near the end of their life span. As much as I might believe that the Senator should "pay" for his crimes, I can't help but wonder how in this case the taxpayer isn't also going to pay, and pay worse, if he is actually put in jail.

Posted by: Daniel | Oct 28, 2008 11:18:34 AM

The most interesting part of sentencing is Senator Stevens' perjury (his own), suborning perjury (his wife's) and obstruction of justice!

A federal judge must take this very seriously and impose and very strict sentence. Not only did Stevens think he was above the law -- he thought he was so important and powerful he could lie about it and have his wife lie about it to.

His perjury was not just the normal "I didn't do it" and the jury says "yes you did." His testimony, as reported in the press, suggests a deliberate attempt to invent a defense by calling much of the property he received loans and the he claimed that the home improvements were all paid for (... his wife handles the bills).

He should get a very stiff sentence for what he did, should be removed from the U.S. Senate and lose his Senate pension.

Posted by: Oil City | Oct 28, 2008 12:05:06 PM

Oil City. I understand your thirst for vengeance and can sympathize with you regarding regarding the loss of his Senate position. As for the loss of his pension, there is nothing the law that allows for that and a judge ordering such a thing would create serious separation of power issues. The Senate as a whole could do that but I think the odds of that happening are slim to none; I can't think of a single corruption case where that has ever happened. Senators are too much aware of the "but for the grace of God, there go I". As for the stiff prison sentence, I'll ask again: how does shifting the burden for his end of life care onto the taxpayer advance the course of justice?

Posted by: Daniel | Oct 28, 2008 12:16:18 PM

An "end of life" defense? His "end of life" apparently didn't interfer with his ability to break the law, receive improper gifts AND continue to function as a senator.

I would understand that defense if he was some old guy who grew and smoked marijuana for his illness or he was someone who robbed a bank to get money to buy medicine, etc..

"Uncle Ted" is not someone who has held himself out as at the "end of life." For goodness sake he IS running for another 6-year term in the Senate. If he is able to serve 6 years in the Senate he is able to serve a jail sentence.

I was calling for the Senate to strip him of his pensions.

McCain and Palin have already called for his resignation.

Posted by: oil city | Oct 28, 2008 12:58:39 PM

Daniel, you raise an interesting point about his medical expenses. I don't know the practical details of how it would work. Just a few thoughts, though: First, if Senator Stevens dies in prison, he won't be the first one to do so. Second, if it becomes clear at some point that he has 6 months left to live, they can always send him home to die and pay his own medical bills. Third, I imagine that the required level of medical care in prison is lower than what Senator Stevens can afford to pay out of his own pocket, and I would therefore speculate that he'll probably be paying much of his own medical expenses regardless of whether or not he's in prison. You raise an interesting question about whether jailing him is worth the cost, but I don't know the answer.

More generally, I suspect that the main consideration behind the sentence should be the idea that no one is above the law. If Senator Stevens gets a light sentence, it'll look bad.

Oil City, Daniel's probably right about the consequences. I have no idea what the law requires, but Congress has historically protected its salaries and pensions. It could be that Senator Stevens will be required to make restitution of some sort, which would come out of his assets, but I doubt that he'd lose his pension as punishment.

Posted by: | Oct 28, 2008 1:00:49 PM

As for punishment, my thought is that we should look at this as two crimes. The first is lying on the forms/corruption, i.e. what he was charged with. On that front, I do not believe any prison sentence is warranted in this case. If Stevens were 45, then yes, prison time would be appropriate. But for a man of his age, prison seems like a waste for many of the reasons discussed by others. Instead, I think the judge should impose an enormous fine - equal to the proven amount that Stevens failed to report, plus the cost of investigation and prosecution, plus any other social costs that are relatively quantifiable that the judge could tack on. I also think that, in this case, a public shame sanction would be a very good alternative. This is especially so given the unbelievable pride and scorn for all others Stevens showed throughout the trial. Make him stand outside the Capitol during prime tourist season with a sandwich board telling people who he is, what he did, etc. for a couple weeks. I don't think that a failure to give a prison sentence for the failure to report the gifts, in this case, would result in a lack of deterrent value, especially if the alternative sentence is relatively rough.

However, I think the second crime - the perjury issues discussed by others - does deserve jail time. Maybe not a lot, but the message cannot be that you get a pass on perjury if you're old.

Posted by: A. Nony. Mous | Oct 28, 2008 2:03:02 PM

Wait, as a former senator doesn't he get to keep his congersional health insurance? Tax payer pays either way!

Posted by: Monty | Oct 28, 2008 2:41:57 PM

Given the nexus between the deficit and our children having to pay for it, thanks to Republicans, there is a plausible possibility Sen. Stevens might try to steal children's candy on Halloween. He should have to stay inside with his lights off. The sign on his door: I am not a crook.

Posted by: | Oct 28, 2008 4:00:24 PM

Fellow sentencing and history buffs-- help me out here. There was a famous political figure (I think in the 1930's) who faced some criminal charges and also had an election coming up. His statement to the press was: "If convicted, I will serve!" Can anyone put a person on this?

Posted by: mpb | Oct 29, 2008 5:54:13 AM

Was it "Honey Fitz," or another Mayor of Boston?

Posted by: Ed Unneland | Apr 1, 2009 3:08:39 PM

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