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January 26, 2010
Judge Weinstein attacks Wall Street while sentencing with aid from a judicial sentencing panel
A new sentencing story out of the Eastern District of New York, which is described in this New York Law Journal piece headlined "In Securities Dealer's Sentencing, Judge Blasts 'Corrupt' Wall Street Culture," includes a gut of exciting themes for a law geek like me. Here are excerpts:In sentencing former Credit Suisse securities dealer Eric Butler to five years in prison, Eastern District of New York Judge Jack B. Weinstein has condemned "the pernicious and pervasive culture of corruption" on Wall Street.
"The blame for this condition is shared not only by individual defendants like Butler, but also by the institutions that employ them, those who carelessly invest, and those who fail to regulate," Weinstein wrote in the Statement of Reasons for the sentencing he issued on Friday in United States v. Butler, 08-cr-370.
"Supervision is seriously negligent; greed and short-term gain are so enormous that fraud and arrogant disregard of others' rights and of ethics almost encourage criminal activities such as defendant's," he said. In addition to the five-year sentence and three years of supervised release, Weinstein fined Butler $5 million, about $1 million more than Butler's estimated assets.
United States v. Butlermarked perhaps the first major criminal action stemming directly from the subprime crisis. Following a three-week trial, Butler was convicted in August of securities fraud, conspiracy to commit securities fraud and conspiracy to commit wire fraud for his role in a scheme to trick investors into purchasing high-risk and high-commission subprime securities....
Judge Weinstein dedicated a significant portion of Friday's eight-page statement [which is available here] to excoriating the culture of Wall Street....
The sentencing was also notable for Weinstein's use of an advisory panel of fellow Eastern District judges, an increasingly common practice in Brooklyn federal court since 2005 when the U.S. Supreme Court determined in United States v. Booker, 543 U.S. 220, that sentencing guidelines should be treated as advisory rather than mandatory. Although Weinstein declined to name the judges he consulted, the panel did include the Eastern District's chief judge, Raymond Dearie.
Dearie said in an interview Monday that he expects the use of advisory panels to become "fairly standard" in the Eastern District in the near future for difficult cases, such as those with broad or long guidelines, and as the imperatives of the pre-Booker guidelines recede.
In the present case, Weinstein wrote that he convened the advisory panel because "of the severe impact of defendant's frauds on the international short- and long-term securities markets, and other complexities presented by this sentencing." In addition to the unspecified number of judges, the panel included "an expert on sentencing guidelines from the court's Probation Department," Weinstein wrote.
In pre-sentencing arguments, the prosecution contended that Butler faced a statutory maximum of 45 years and a guidelines recommendation of up to life in prison. The advisory panel recommended six to 10 years. Butler requested probation. Weinstein settled on a five-year sentence.
"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."
Dearie said he knew of no other district court that regularly uses advisory panels, but that when he testified before the U.S. Sentencing Commission last year, the Massachusetts District Court seemed "very" interested in the concept.
Though the Wall Street smack-down is what makes the headlines here, I think true sentencing geeks like me are likely to get more excited and intrigued by the idea that the use of advisory sentencing panels may become "fairly standard" in the Eastern District in the near future for difficult cases. And, in the near future, I hope there will be full transparency about who is on these panels and how they make their recommendations.
January 26, 2010 at 07:58 AM | Permalink
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Comments
You say "advisory panel," I say "Star Chamber".
Of course, a shadowy group of judges meeting behind closed doors is eminently better than a Commission that operates under the APA and solicits public comment.
More Booker reality sets in. For those too young to remember the pre-SRA history, your clients are now doomed to repeat it.
Keep up the blind pro-Booker apologia, Prof.
Posted by: Ferris Bueller | Jan 26, 2010 8:49:27 AM
I would restrain your enthusiasm Professor. Advisory panels, while helpful, would be used in a limited number of cases-most likely those presenting novel issues.
Federal Judges' time is viewed as a precious resource-don't expect widespread use.
Posted by: mjs | Jan 26, 2010 11:24:07 AM
"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."
It is hard to imagine a more forthrigfht statement of discrimination against unmarried people and loners than that provided by Judge Weinstein.
As to panels, their actual value is shown by this very case. The panel's recommendation was ignored in favor of what Weinstein wanted to do. Since we already have guidelines the judge can ignore, I wonder what real purpose would be served by having guidelines lite that the judge ALSO can ignore.
Posted by: Bill Otis | Jan 26, 2010 11:57:13 AM
Bill.
LOL. One day I wildly disagree with you and then the next day I wildly applaud you.
"It is hard to imagine a more forthrigfht statement of discrimination against unmarried people and loners than that provided by Judge Weinstein."
Oh, it's not hard to imagine. Look at the way the police portray "lone wolves" or the way the media portrays sex offenders.
Having said that, kudos to you for pointing the harsh truth out. In America, single=easy prey.
Posted by: Daniel | Jan 26, 2010 12:13:37 PM
What is "discrimination"? One of the most intellectually vapid issues in sentencing law is "disparity." People trot that word out like it means something. The word itself is utterly meaningless. What is "disparate" to a deterrence theorist may not be "disparate" to a retributivist, and vice versa. The word does not mean anything until you admit to what your priors are, and then it is an accurate description of things only to those who share your priors. Efforts to speak about "disparity" or "discrimination" like they have objective meaning are futile at best and intellectually dishonest at worst.
So is it wrong for the judge to take into account family issues? Incarcerating a family person DOES impose greater social costs than locking up someone with no dependents. Should judges be forced to ignore this? Maybe, but that's a normative claim, and one that must be defended, not simply asserted.
Posted by: John Pfaff | Jan 26, 2010 12:34:43 PM
John.
Your entire comment is exactly proof oh what I'm talking about. Why should single people have to play defense on a normative claim? That's bias right there as far as I see it.
"Incarcerating a family person DOES impose greater social costs than locking up someone with no dependents."
Yeah, I suppose it does. The arm candy will now have to actually get a job. Tragic, that.
Posted by: Daniel | Jan 26, 2010 12:59:52 PM
daniel: "The arm candy will now have to actually get a job. Tragic, that."
me: supremacy claus is going to have to work hard to beat that statement for sexism.
and just because someone is single doesn't mean they don't have family members or neighbors or friends to speak up for them. maybe less compelling than caring for a child. loners may well be out of luck.
Posted by: virginia | Jan 26, 2010 1:54:14 PM
"disparity" reminds me of the phrase "overrepresented" - which always begs the question, why?
Posted by: Steve | Jan 26, 2010 2:32:16 PM
Mr. Otis,
Unmarried people and "loners" are less likely have innocent dependent childrent. The cases are legion where courts appropriately mitigate a sentence to lessen the suffering of innocent family members. E.g., U.S. v. Gauvin, 173 F.3d 798 (10th Cir. 1999)(departure of three levels to 37 months, making D eligible for shock incarceration, warranted under §5H1.6 “to minimize the impact of defendant’s children”); U.S. v. Galante, 111 F.3d 1029 (2d Cir.1997) (affirms district court’s 13-level downward departure in drug case from 46-57 months to 8 days – where Defendant showed he was a conscientious and caring father of two young sons who would have faced severe financial hardships ); U.S. v. Milikowsky, 65 F.3d 4, 8 (2d Cir. 1995) ("Among the permissible justifications for downward departure ... is the need, given appropriate circumstances, to reduce the destructive effects that incarceration of a defendant may have on innocent third parties.")
Posted by: Michael R. Levine | Jan 26, 2010 3:49:36 PM
Mr. Levine --
If the cases are "legion," as you say, I would think you would have posted one more recent than 11 years old.
Having been an AUSA for many years, I know first hand that the great majority of judges follow the Guidelines' explicit admonition that family ties and responsibilities are not ordinarily relevant to the sentence, U.S.S.G. Sec. 5H1.6.
If a criminal wants to mitigate the harm to his family that will flow from his incarceration, he might have thought about that before deciding to steal or swindle or sell the meth or whatever else he did.
The fact of the matter is that Judge Weinstein could not have made it clearer that a person not fortunate enough to have had this defendant's family and friends would have recieved a harsher sentence for identical conduct. If that is your idea of equitable treatment of defendants, you are entitled to it.
Posted by: Bill Otis | Jan 26, 2010 4:29:52 PM
Virgina.
The practice is sexist. It is the judge, not I, who wrote, "working and supporting his family economically and psychologically". If she's capable of supporting the family on her own then his ability to do so is irrelevant, even under a "family friendly" approach. If she is not, society shouldn't have to bear the burden of supporting the lifestyle to which she has become accustomed.
Calling out the blatant sexism of others is not sexist.
Posted by: Daniel | Jan 26, 2010 5:20:07 PM
As I recall, Bill, when Prez Bush took your op-ed advice and commuted all of Lewis Libby's prison sentence, he stressed the fact that Libby's prison term was excessive due in part to the fact that Libby's "wife and young children have also suffered immensely." Did you consider Prez Bush's lenient sentencing judgment and this stated justification to be another example of "discrimination against unmarried people and loners"?
As an alternative question, would you favor Judge Weinstein dealing with the form of discrimination you dislike by saying that, based on your expressed concerns, in the future he will seek to sentence "unmarried people and loners" as if they had supportive friends and family (and will encourage the authors of PSR to always indicate as much in order to ensure he does not fall prey to this form of Otis-hating "discrimination"?
Rather than throwing out a peculiar claim of discrimination, how about just saying you do not like when sentences are reduced based on family considerations. You will find support for this claim in a recent Oxford book from some academics titled "Privilege or Punish."
Posted by: Doug B. | Jan 26, 2010 6:11:00 PM
It's not sexist. The same rationale could be used for a female defendant who would be leaving behind a husband and child. Anyway, virginia was responding to your specific, irreverent comment regarding "arm candy," as opposed to your arguments with the actual opinion.
I don't read the opinion as granting some kind of reduction based per se on the fact that the defendant had a family. This issue was discussed in the opinion in regards to specific deterrence.
Posted by: Buffalo Bill | Jan 26, 2010 6:11:58 PM
Bill Otis wrote: “As to panels, their actual value is shown by this very case. The panel's recommendation was ignored in favor of what Weinstein wanted to do.”
I wouldn’t exactly say that. The panel recommended 6 to 10, whereas the government asked for 45. The judge’s sentence of 5 years was much closer to the panel’s advice than it was to the government’s.
Now, if the panel had recommended something like 25 to 30 years, and the judge had sentenced him to 5, you’d have a stronger argument that the panel had been ignored.
Posted by: Marc Shepherd | Jan 26, 2010 6:50:09 PM
daniel: "Calling out the blatant sexism of others is not sexist."
me: I disagree that what the judge did is sexist - there is nothing sexist about saying that a parent has an obligation to support their child financially and emotionally. the fact the the parent getting a break due to the claimed need to support a child in this case is a man doesn't change that. so your line of defense won't work with me.
even assuming argumendo that there is somehow something sexist about saying that a father should support his child financially, when you use sexist terms and make sexist assumptions, that is sexist no matter what your assumption. and if you think that the only thing that a father and husband can provide support for a wife and child is financial, you are quite simply, hopeless. the wife may be perfectly self sufficient economically without him, but it still will not provide that child a father or provide her a loving husband.
Posted by: virginia | Jan 26, 2010 6:51:19 PM
Mr. Otis,
I suggest you reconsider your views. The absurdity of guideline 5h1.6 is no doubt one of the reasons the guidelines are not longer mandatory and just one factor to be considered under 18 usc 3553. Cleary a judge should consider the effects of the sentence on innocent family members--as I'm sure you would do were you a judge. Here are some cases after 1990.
See Statement of President Bush commuting 30-month guideline sentence of Lewis Libby who was convicted of perjury and obstruction in part because “His wife and young children have also suffered immensely.” (found at http://www.whitehouse.gov/news/releases/2007/07/20070702-3.html); U.S. v Schroeder, 536 F.3d 746 (7th Cir. 2008) (where defendant convicted of tax fraud and sentence to 30 months, sentence vacated in part because district court rejected defendant’s argument that family circumstances justified a below guideline sentence saying it was his fault for committing the crime…. When a defendant presents an argument for a lower sentence based on extraordinary family circumstances, the relevant inquiry is the effect of the defendant’s absence on his family members); United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992) (“The rationale for a downward departure here is not that [the defendant’s]family circumstances decrease her culpability, but that we are reluctant to wreak extraordinary destruction on dependents who rely solely on the defendant for their upbringing.”); U.S. v. Bueno, 549 F.3d 1176 (8th Cir. 2008) (where defendant possessed more than 70 kilograms of cocaine, and guidelines 108-135 months, sentence of probation with house arrest for five years not unreasonable given wife’s illness and dependence on defendant); U.S v. Lehman, 513 F.3d 805 (8th Cir. 2008) (where defendant convicted of felon in possession and where guidelines 37-46 months, district court’s granting of downward departure or variance to probation with 6 months in half-way house proper after Gall, because of effect mother’s imprisonment would have on defendant’s 8-year old son); U.S. v. Menyweather 447 F.3d 625, 634 (9th Cir. 2006) ( in $500,000 embezzlement case, no abuse of discretion for district court to depart 8 levels to probation in part because of unusual family circumstances were “Defendant's relationship with her daughter, and the care that Defendant provides, are unusual as compared with the situation of other Links & ResourcesUS Department of Justice United Statessingle parents.”); U.S. v. Aguirre, 214 F.3d 1122 (9th Cir. 2000) (within district court’s discretion to depart downward 4 levels for extraordinary family circumstances "based on the fact that there is an 8 year?old son who's lost a father and would be losing a mother for a substantial period of time"); U.S. v. Dominguez, 296 F.3d 192 (3rd Cir.2002) (in bank fraud case, district court erred in holding it could not depart four levels downward for defendant who resided with her elderly and sickly parents, who were physically and financially dependant upon her) ;
U.S. v. Bortnick 2006 WL 680544 (E.D.Pa.,2006) (unpub.) (in eight million dollar fraud case where guidelines 51-63 months, substantial fine and sentence of 7 days sufficient in part because defendant’s son born with severe handicap needs attention and financial support); U.S. v. Milne 384 F.Supp.2d 1313 (E.D.Wis.,2005)(in bank fraud case court reduces guideline sentence by one level because defendant was sole supporter of a large family, and “a long period of imprisonment would have a very harsh effect on defendant's dependents.”); U.S. v. Manasrah, 347 F.Supp. 2d 634 (E.D. Wisc. 2004) (where defendant was immigrant who was convicted of mail fraud in illegal coupon redemption scheme, judge departs two levels to probation with home detention where “Imprisonment would cause both defendant and her children to suffer inordinately.”); U.S. .v. Mateo, 299 F.Supp.2d 201 (S.D.N.Y. 2004) (in heroin case where defendant’s two young children were “thrust into the care” of defendant’s relatives, “who report extreme difficulties in raising them” and where both fathers are absent, and the children, now ages six and one, will be raised apart from both biological parents for as long as the defendant is in custody, a downward departure is appropriate); U.S. v. Colp, 249 F.Supp. 2d 740 (E.D. Va. 2003) (where defendant pled guilty to one count of income tax evasion departure from guideline range of 10 to 16 months to probation warranted because of she was the sole caretaker for her disabled husband, "any period of incarceration” here would “serve as an undue hardship on Mr. Colp”); U.S. v. Norton, 218 F.Supp.2d 1014( E.D.Wisc. 2002); (departure from 15-21 months to probation and home confinement granted to D convicted of credit card fraud observing that the Guidelines “do not require a judge to leave compassion and common sense at the door to the courtroom.” and defendant’s family would be forced onto public assistance if defendant incarcerated); U.S. v. Kloda, 133 F.Supp.2d 345 (S.D.N.Y. 2001) (father and daughter who filed false tax returns for their business entitled to downward departure in part because of needs of daughter's small children. A judge must sentence “without ever being indifferent to a defendant's plea for compassion, for compassion also is a component of justice.”); U.S. v. Tineo, 2000 WL 759837 (unpub.) (S.D.N.Y. June 8, 2000) (downward departure is warranted if "incarceration in accordance with the Guidelines might well result in the destruction of an otherwise strong family unit” ); U.S. v. Blake, 89 F.Supp.2d 328 (E.D.N.Y. 2000) (in bank robbery, departure from level 29 to level 8 and probation proper in part because of emotional trauma 3-year-old daughter would suffer); U.S. v. Blackwell, 897 F.Supp. 586, 588 (D.D.C. 1995) (causing needless suffering of innocent children not in the interests of justice); U.S. v. Rose, 885 F.Supp. 62 (E.D.N.Y. 1995) (Defendant convicted of interstate receipt of firearm, who assumed role of non-custodial surrogate father to four children merited downward departure to probation because the departure "is on behalf of the family").
Posted by: Michael R. Levine | Jan 26, 2010 7:23:48 PM
Doug --
Whenever I'm feeling glum that the Dems are in total control and that my old colleagues and I are on the sidelines, I can hope that someone will remind me of my former status running the White House (well, not "running" exactly, but silently moving the pieces around, along with the Trilatteral Commission and the aliens secretly housed at Area 51). In this case, you have come to the rescue! You made my day.
Although the President employed Libby's family status in his commutation decision, that was not ANY PART of the reason I urged commutation. See http://www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602292.html. The President made any number of decisions with which I did not agree, or had different reasons for decisions with which I did agree. But he got elected, not me.
In response to your alternative question, I would not urge Judge Weinstein to say anything about what he plans to do in the future, since (1) it would be utterly unenforceable and (2) it would be dictum. I support the Guidelines' injunction, now a generation old and never successfully challenged, that a defendant's family ties and responsibilities are ordinarily not relevant to a decision whether to sentence outside the range. I'm sure you see the problems with the alternative -- that to allow such variations or (the flip side) a judge's DECLINING to engage in such variations, as he is absolutely free to do -- will invite inequity and random disparity into sentencing. It will also and relatedly nudge sentencing back toward looking to the subjective view of offender and away from the more objectively quantifiable offense behavior.
"Rather than throwing out a peculiar claim of discrimination, how about just saying you do not like when sentences are reduced based on family considerations."
I thought saying the one was pretty much saying the other. But to be explicit: I think that to give Defendant A a higher sentence than Defendant B for identical offense behavior, and based simply on the fact that Defendant A isn't married and doesn't have a family, IS discriminatory. There may be cases in which family and community ties exist "of a kind or to a degree" not contemplated in the Guidelines, and in those cases a departure may be warranted. But in my view Judge Weinstein did not establish that here.
The truth is that Weinstein has never liked the Guidelines and found a sort-of plausible way around them, particularly in the post-Booker do-your-own-thing world. As the law stands now he's entitled to do it, but it's still discriminatory.
"You will find support for [your view] in a recent Oxford book from some academics titled "Privilege or Punish."
True, but the darn thing costs 75 bucks. You gotta remember, I only worked for the government.
Posted by: Bill Otis | Jan 26, 2010 8:12:13 PM
"there is nothing sexist about saying that a parent has an obligation to support their child financially and emotionally".
That's true. Except that not what the judge said. It was the judge who wrote the words, "loving wife" not me. That fact that the defendant has a loving wife is nice and all but is completely irrelevant to the issue at hand. Most importantly, the *sex* of the spouse is irrelevant to the subject at hand. The last time I checked a "wife" was by definition female. The judge made a deliberate and conscious emotional appeal to the *sex* of the partner. The judge did that. Not me.
The whole thing is simply putrefying. He's a judge, not Charles Dickens. "Young child". Would it have made any difference if the child was a teen, how about a tween. If the poor little old orphan is heart broken about missing their preciosu daddy they can sooth themselves by begging mommy for new designer jeans at Saks.
Posted by: Daniel | Jan 27, 2010 1:35:25 AM
All that shows to me is that he writes in cliches. Like an obituary where the deceased is survived by a loving wife. Sentencing opinions are like that because they're formed from melodrama. Victims testify on how awful the defendant has made their lives. The defendant gets his witnesses to say what a good person he is. The defendant then says how sorry he is and has found Jesus. The prosecutor and the defense attorney reiterate this again. The judge then issues an opinion shaped by such testimony and argument. Nothing really astounding.
The sex of the spouse serves as a factual issue, but I don't see it as determinative. I don't read it as a determinative issue that demands a sentencing reduction simply based on the sex of the defendant's spouse. Nor would it be any different with a female defendant who, if the judge noted, has a loving husband and child. Not sexist, just fact.
Posted by: Buffalo Bill | Jan 27, 2010 5:31:38 AM
Bill, I know you did not run anything in DC, but your prominent pro-Libby op-ed urging sentencing leniency surely had some influence on Prez Bush's decision. And, as attends this debate, it sounds as though you DO consider part of Prez Bush's stated justification for showing leniency to Libby to be another prominent example of "discrimination against unmarried people and loners." I am pleased to hear that you are consistent in your view that any ordinary-family-based sentencing consideration is discriminatory.
But while your view is consistent, it seems to be contrary to congressional sentencing instructions in 3353(a), which demands that sentencing judges consider "the history
and characteristics of the defendant." I assume you would agree that Judge Weinstein has an obligation to follow this statutory mandate notwithstanding your own (quirky) vision of what sort of considerations amount to "discrimination."
Meanwhile, I do NOT agree that proper consideration of certain offender-based considerations by judges "will invite inequity and random disparity into sentencing." Given that victims, police, prosecutors, defense attorneys, jurors, probation officers and other sentencing actors (like Prez Bush) regularly consider family and other offender characteristics --- and do so with the need for explanation or subject to judicial review --- I think it valuable for judges to consider and explain, in a principled and reasoned way, just when and why they believe such considerations seem important in service to congressional sentencing purposes. And I have written as much in a 2001 FSR article titled "Addressing Why: Developing Principled Rationales for Family-Based Departures": http://caliber.ucpress.net/doi/abs/10.1525/fsr.2001.13.5.274
Finally, I would like to hear if, now or when you were a prosecutor, you likewise worry that providing or recommending sentencing discounts based on an offender's "substantial assistance" amounts to a form of "discrimination" against unconnected criminals and loners. As you know, both before and after Booker, extensive sentencing discounts for an offender's SA have been recommended by federal prosecutors and granted by judges in many thousands more cases than family-based discounts, and these SA discounts surely serve to "nudge sentencing back toward looking to the subjective view of offender and away from the more objectively quantifiable offense behavior."
Perhaps you think the ends justify the ("discriminatory"?) means when the ends are "helping prosecutors make more cases" but not when when the ends are "supporting and encouraging offenders and their relatives to sustain strong families ties." But if this is you claim, I would have to accuse you of being one of these persons tending to be unsupportive of family values.
Posted by: Doug B. | Jan 27, 2010 9:18:54 AM
5K.1 is a strawman here, Prof. For one, 5K actually has a relationship to the offense, particularly the offender's (real) acceptance of responsibility, whereas the fact he or she was fertile at one time and spawned has no relationship to the offense. Second, 5K is frankly an extension of plea/charge bargaining power of the Government. Johnny Law has the discretion to do what he wants with his ball. Period. Finally, if 5K was granted by the Judge sua sponte you might have a point, but the 5K MOTION by the government is the operative act, not the judge's decision to grant it. The two (5K and a departure/variance for family ties) are not comparable at all. Procedurally or substantively.
"Family ties" is merely nothing more than a hook to hang the sympathetic judge's hat on when nothing else exists. Disparity in action. What about "family ties" makes an offender more appealing? As Bill notes, these so-important bonds didn't bar the offender committing his or her crime in the first place.
And what's to say a family is better off with an offender in the mix? A judge that's read lawyer-screened letters and a PSR? Give me a break. I've prepared dozens of sentencing memos with indexed letter appendices filled with flowery prose and earnest pleas. Everyone with a decent lawyer has a compelling story - admittedly some are harder to tell than others (Charles Manson comes to mind).
But, if anything, shouldn't the offender with a supportive OR needy family be less appealing for his or her irresponsibility and disregard for such ties in the commission of his or her crimes? Judge Bueller can have sympathy for all the victims of the offender, including his own family, without losing sight of the purposes of sentencing. In fact, in the post-Booker world Judge Bueller might just give a few more months down at the farm above the guideline range for them boys that come from "good families" because I think their "family ties" should have made them behave a sight better than the norm. 3553(a)(1), voila!
What a system.
"Family ties" does nothing but leave the door open for a biased jurist to imprint his or her own feelings about family (good or ill) into a situation where the one person that matters, the offender, hasn't thought about his or her family at all in committing the offense.
Posted by: Ferris Bueller | Jan 27, 2010 11:25:24 AM
Doug --
As I noted, and you don't question, U.S.S.G. Sec. 5H1.6 directs that family ties and responsibilities are not ordinarily relevant in deciding whether to impose a sentence outside the range. As you also don't question, that provision has never (to my knowledge) been successfully attacked as inconsistent with the governing statute, 3353(a).
The reason it has not been successfully attacked is that it cabins, but does not eliminate, consideration of family status, and that's all I'm asking for. In particular, it allows such consideration on the question where to sentence within the range. It also allows sentencing outside the range where, in an individual case, those circumstances are of a kind or to a degree not taken into account by the Commission.
My beef with Weinstein is that he went grossly outside the Guidelines range, and even outside the far more lenient district bench advisory range, without establishing that this defendant's family circumstances were grossly outside the heartland, or, indeed, outside the heartland at all.
If the shoe were on the other foot, let me suggest that you'd find walking painful. Suppose, for example, a judge typically sentenced defendants surrounded with family and friends to terms within the range, but imposed UPWARD departures on unmarried and socially less connected defendants, on the theory that imprisonment would have less than the heartland collateral damage to others. An outcome like that would have the same support AS A CONCEPTUAL MATTER as does Judge Weinstein's but I'll just bet it wouldn't the subject of a (generally) favorable blog here.
As for substantial assistance sentencing discounts: Yes, I do approve of them (and supported dozens of them while I was an AUSA). They are provided for by the the Guidelines, and have been for a generation. And even before that generation, it was standard practice for defendants to get sentencing breaks where they assisted in the apprehension of other criminals. I would have to be nuts to stand against a common sense practice that is so widely subscribed and helps both the public and the individual defendant.
The conceptual difference between a substantial assistance departure and a family circumstances departure is that the former is given in light of the defendant's ACTS WITH RESPECT TO THE CASE, while the latter is given in light of the defendant's STATUS before the case began. The law should not respect persons, but it should assuredly respect behavior.
Posted by: Bill Otis | Jan 27, 2010 11:37:30 AM
I agree with FB and Bill Otis that the Commission had it right in creating a presumption that "family ties" would not ordinarily be relevant in sentencing. It left the door open for the outlier case. Some form of family hardship is present in nearly every case at bar. To now promote the existence of family issues as a 3553 (a) factor is inviting idiosyncratic justice.
Further, we are all assuming an innocent spouse or family. When family ties are made an issue by the defense and family members testify at sentencing, a sharp judge will take the opportunity go beyond the platitudes offered by the witness and ask probing questions about a spouse's knowledge and involvement in the offense. Many times, a wife will concede that they inured multiple benefits from the crime, financial and otherwise.
Posted by: mjs | Jan 27, 2010 2:21:16 PM
"All that shows to me is that he writes in cliches."
I agree with that. It's also a nice dodge. Because the cliche at hand is a *sexist* cliche. That's the point.
Posted by: Daniel | Jan 28, 2010 12:15:25 PM
This is Eric Butler's wife. I am not arm candy. I met Eric when he had nothing and was certainly earning more. I am an educated black female. I moved to the United States at 7, went on to NYU...paid for by my own hard work. I suppose when you say arm candy you are conjuring up some image of a dumb blonde/second wife. I'm not sure...I don't speak in those terms....only you know. I do think it's funny that your arm candy comment came after all the political correctness you had just spouted. Typcial.
Perhaps the judge used the word loving because I had just (along with 5 members of the family) made a statement that was quite emotional and I spoke about the how I had no support other than Eric - as my parents had passed away and I have no family to speak of.
Raising a child without psychological/emotional support is hard for anyone. And as far as financial..welll I have no money, ZERO. It has all gone to our bills/legal bills. We are not gazzilionaires. In fact much of what you think is true....IS NOT. That's because you're busy reading the papers like they are gospel. But not to worry, I would often read the papers after a day at court and marvel at how different my experience in the court room was, and how much they had left out...I used to be just like you. I thought most of what i read must be true. Pretty amazing.
Having been through and still going through the legal process I've learned and realized so many things. Its really made me think about the effect on families. It's no wonder that so people men, are in an out of prison, when you look at their familiarl and social foundation, and the torn social fabric of some of their communities, it's not hard to see connections between missing parents, the financial hardhsip this brings, lack of parental guidance due to a parent having to work two/three jobs and not seeing their children, depression, etc etc etc. So factoring in a familial situation while attempting to serve justice dosnt seem like a crazy idea. Or maybe we shouldnt complain when little johnny whose daddy has been away his whole life for selling a bag of weed, and who's mommy is struggling, depressed, barely making ends meet and emotionally and physically too tired to be present and show true guidance comes and kicks your ass...or at least we should expect it. Human beings arent freaking robots.
There are many factors to consider when sentencing, as the effects are far reaching and we all pay a price in one way or another. For instance for many conjugal visits are a way of rewarding prisoner and which seems ridiculous. But maybe conjugal visits are a way to help couples try maintain an intimate bond, a psychologicaland emotional bond. Im sure you know that when you are in an intimate relationship, touch and sexuaul expression are a part of it....or do you? By encouraging marital relationships to continue, maybe when these men/women got out of prison, much more of them would be coming home to an intact family, to a grounding force, and the emotional and psychological support of their wife/husband/partner/children and the extented family that comes with this. This would surely help as they re-entered the world. Eric is a heterosexual married man. Thats why the judge used wife....but it could be any of the above words.
Maybe you dont believe in disciplines such as human psychology, sociology...and it you dont this is all a bunch of caca.
Oh and lastly i don't buy my childs clothes at Saks. H&M and a stylish and affordable children's section. Yet another of your assumptions which are way off base. Maybe you're not as smart as you think. Hmmmmnnnn.
Sorry for any typos...i'm no lawyer (eye roll) and dont really care..as long as you get the point.
Posted by: Ebutler | May 27, 2010 2:01:49 PM
"Further, we are all assuming an innocent spouse or family. When family ties are made an issue by the defense and family members testify at sentencing, a sharp judge will take the opportunity go beyond the platitudes offered by the witness and ask probing questions about a spouse's knowledge and involvement in the offense. Many times, a wife will concede that they inured multiple benefits from the crime, financial and otherwise."
_______________________________________________
No i did not benefit from this ALLEDGED crime. I do not walk around in furs and diamonds. In fact I clean and have always cleaned my own house, insisted that eric by me a nice plain wedding ring, because im not into jewelry. And didnt have nannies and night nurses when I had my child, which seems to be the thing to do in New York. I still shop at strawberry for my leggging and hate shopping. The only large purchase we ever made was our home and that's because we hoped to grow into it and be there forever. And by the way it was on Chambers street and Broadway...not Park Avenue.
Posted by: Ebutler | May 27, 2010 2:11:08 PM
For more than a quarter of a century, Jack B. Weinstein has championed the fight for an independent judiciary. As a federal district judge (and later chief judge) for the Eastern District of New York, he has written, lectured, and testified about the importance of fostering strong, free-thinking jurists in the U.S. courts. As a young judge, he exerted his independence by eschewing the traditional black robe in the courtroom (except for ceremonial occasions), and as a senior judge he continued to go his own way by refusing to hear drug cases because he disagreed with federal sentencing guidelines.
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