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February 18, 2013
You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
Jesse Jackson Jr. and his wife Sandi intend to plead guilty to federal charges alleging the former congressman misused $750,000 in campaign funds while she understated their income on tax returns for six years, their lawyers say.
Jackson Jr., 47, a Democrat from Chicago, was charged in a criminal information Friday with one count of conspiracy to commit wire fraud, mail fraud and false statements. He faces up to five years in prison, a fine of up to $250,000 and other penalties.
Sandi Jackson was charged with one count of filing false tax returns. She faces up to three years in prison, a fine of up to $250,000 and other penalties.
Jackson Jr. is accused of diverting $750,000 in campaign funds for personal use. Federal authorities allege that Jackson Jr. used campaign funds to purchase a $43,350 men’s gold-plated Rolex watch, $5,150 worth of fur capes and parkas, and $9,588 in children’s furniture. The purchases were made between 2007 and 2009, according to the criminal information, which authorities noted is not evidence of guilt....
The government also alleged that Jackson Jr. made false statements to the House of Representatives because he did not report approximately $28,500 in loans and gifts he received. "He has accepted responsibility for his actions and I can confirm that he intends to plead guilty to the charge in the information," Jackson Jr.'s attorney Brian Heberlig said.
Sandi Jackson is accused of filing incorrect joint tax returns with her husband for calendar years 2006 through 2011, reporting income “substantially less than the amount of income she and her husband received in each of the calendar years,” with a substantial additional tax due. Her attorneys released a statement saying she has "reached an agreement with the U.S. attorney’s office to plead guilty to one count of tax fraud."
Jackson Jr. stepped down from the House of Representatives on Nov. 21, citing both his poor health and an ongoing federal probe of his activities. In a statement then, he said he was doing his best to cooperate with federal investigators and to accept responsibility for his “mistakes.”...
Sandi Jackson's attorneys released a statement saying she "has accepted responsibility for her conduct, is deeply sorry for her actions, and looks forward to putting this matter behind her and her family. She is thankful for the support of her family and friends during this very difficult time."...
The Rev. Jesse Jackson said he would "leave it up to the courts system" to determine his son's fate. "We express our love for him as a family," he said....
Last June, Jackson Jr. began a mysterious leave of absence for what originally was called “exhaustion” but later emerged as bipolar disorder. He spent months in treatment and won re-election Nov. 6 despite never returning to service in the House or staging a single campaign appearance....
Jackson Jr. was first elected to Congress in 1995. Sandi Jackson was a Chicago alderman until she resigned her post last month. They have two children.
Federal sentencing fans know well that the willingness of the Jacksons to accept responsibility and plead guilty should help them considerably when a federal judge is tasked with imposing a sentence on the alleged federal charges. Indeed, I have to assume that this willingness to plead guilty is a reason that the initial charges in this case appear to limit Jesse's maximum prison sentence to only five years and Sandi's maximum sentence to only three years.
But, regular readers should recall from recent discussions over the high-profile Amish beard-cutting federal case, federal prosecutors not only need to decide what criminal charges to file, but they also need to decide what sentence should be recommended after convictions are secured. Ergo the question for readers in the title of this post: assuming the Jacksons both plead guilty and show deep and genuine remose for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?
P.S. Depite the US Sentencing Commission's website still being down (grrr....), I was able to do a quick guidelines guestimate that Jesse Jr. would be facing, at the very least, three or more years in federal prison as a recommended guideline range (principally because the "loss" amounts alleged here are pretty high). But, of course, as Bill Otis was quick to remind us in the Amish beard-cutting conversation, federal prosecutors need not (and arguably should not) utilize the guidelines range as a starting metric for any prosecutorial sentencing recommendations.
UPDATE: I have added a picture of the Jackson family to this post in part because I had been wondering about the ages of their two children. Though the picture reprinted here may be a bit dated, I have confirmed (via this Wikipedia entry) that the kids are still pretty young — ages 12 and 9 as of this writing — which means they would likely be harmed greatly if both their parents are sent to prison at the same time. Ergo, if any would-be federal prosecutors are inclined to recommend prison sentences for both Jessie Jr. and Sandi, I wonder if you would oppose a likely request from the defense to stagger any prison terms so that the Jackson children can always have at least one parent on the outside.
February 18, 2013 at 05:19 PM | Permalink
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18 months tops for each plus fine.
Posted by: Thinkaboutit | Feb 18, 2013 5:27:50 PM
Drop the hammer. On both. First of all, I hope that we will be spared the whole "public servant" thing. This guy used his position as a public servant to steal money. Second, even though he wasn't charged for it, he clearly filed false tax returns--he had to know that money was taxable, yet he didn't pay, and all of this while his whole record was to jack up taxes on the rest of us, i.e., people who made their money honestly.
What's disgusting is that his lifestyle was probably common knowledge to many in DC. Where was the IRS? While this country was facing massive budget deficits, he chose not to pay his fair share. All the while wagging his moralistic finger.
Although this isn't relevant to sentencing, what's nauseating is the press's coverage of this as lost potential etc. etc. The guy was a third-rate hack trading off a family name. And of course, the press has made zero mention of this hack's utter hypocrisy--higher taxes for the rest of us, while he doesn't pay his fair share.
As for his kids, let them go to public school.
Posted by: federalist | Feb 18, 2013 8:20:30 PM
federalist --
Indeed. The hilarious thing, in a way, is that Jesse Jr. was one of the loudest proponents of raising taxes on the "rich," while enriching himself to the hilt, lying about it, and paying no taxes.
Quite an example, he is.
Posted by: Bill Otis | Feb 18, 2013 8:44:19 PM
Doug --
"Bill Otis was quick to remind us in the Amish beard-cutting conversation, federal prosecutors need not (and arguably should not) utilize the guidelines range as a starting metric for any prosecutorial sentencing recommendations."
Just so. The USSC is a component of the judicial branch (per Mistretta), and the guidelines sentencing ranges are for the guidance of the courts, NOT the executive branch, and specifically not prosecutors. The prosecution is a party to the case, and is free to make the recommendation it thinks appropriate (just as is the opposing party). Doing so violates absolutely no statute or rule.
Of course, the government is the classic repository of conventional thinking, so, not surprisingly, it generally recommends sentences within the authorized range. This is less than shocking.
Posted by: Bill Otis | Feb 18, 2013 8:54:38 PM
I can't wait for all the libs to whine in here about how mean-spirited I am.
Posted by: federalist | Feb 18, 2013 9:05:52 PM
As a dyed in the wool lib, federalist, I for one happen to agree with you (at least, your position on his final sentence. I'm sure you wouldn't want to punish a man for his political positions, would you?). As you say, this guy used his position as a public servant to steal money; money to which he never would have had access had he not been a public servant. In addition, he had every advantage in the world, both monetarily and otherwise, and he still chose to steal on a massive level. I'm not often a fan of "making an example" out of someone, but this might be a good time to do so.
My only caveat has to do with his mental illness. If his defense lawyers could convince me that his bipolar condition was a serious contributor to his crimes, I might cut him a little slack. Note that I said "might" and "a little." He's clearly not M'Naughten and he can and should serve a harsh sentence for his conduct. But it would be silly to ignore something beyond his control that might have played a big role in his behavior.
Posted by: Anon | Feb 18, 2013 9:32:14 PM
Anon --
"My only caveat has to do with his mental illness."
What makes you think he even has a mental illness? At the time he claimed to have it and checked himself in, he surely knew the feds were onto him and he would be facing charges on which they had him ice cold.
What to do?
Check yourself into a fancy clinic and rent some shrink to testify at the sentencing you know will be forthcoming that you're "bi-polar" or have PTSD or whatever the syndrome du jour is.
Jesse Jr. is a crook. But he's not a fool and neither is his lawyer. The "get-yourself-diagnosed-with-bi-polar" game is the oldest in town.
P.S. Why is it these bi-polar fellas always seem to be "afflicted" in a way that forces them to buy a $43,350 wristwatch instead of going to Calcutta to help Mother Theresa?
Posted by: Bill Otis | Feb 18, 2013 10:02:38 PM
It's the law education. It makes very intelligent people become "dumbasses." Mr. Jackson is not bipolar. He is sad about being caught, a normal reaction.
He and wife are not a threat to the public safety, and do not require the incapacitation of prison. We, the taxpaying public, do need all that money back. There should be a payment plan of half his after tax income.
In exchange for the leniency of not allowing the vicious, feminist, racist, retributionist prosecutor feminist running dog (did I say it, feminist running dog)to have his way with this productive male, he also has to tell us everything he knows about any louche transactions by his father, the big fish.
Posted by: Supremacy Claus | Feb 18, 2013 10:24:04 PM
Doug, a Freudian slip? Shouldn't it be "You be the judge."?
Posted by: federalist | Feb 18, 2013 10:40:47 PM
I'd almost throw the book at them. We're talking about someone who should be leading by example, and who is in SERIOUS breach of the public trust. My only lenience would be due to pleading guilty, and saving the courts some resources and time. In my book, that might be worth a 5-10% reduction from the maximum sentence.
Civil attorney here.
Posted by: Nazim | Feb 18, 2013 11:24:55 PM
federalist and Bill Otis: I doubt many will complain about your tough reactions to these crimes, especially because you identify some significant aggravating sentencing factors. But I will complain that you both failed to indicate a specific sentence you would recommend if you were the prosecutors here. (Thinkaboutit, to his/her credit, answered the question by saying "18 months tops for each plus fine.")
You say, federalist: "Drop the hammer. On both." Does this mean you think the feds ought to push just for the stat max on a single count for both (which, I believe, would be 5 years' imprisonment for Jesse Jr. and 3 years for Sandi). Or does this mean you want them both to be facing much more than a single federal criminal charge?
As Bill has been quick to note in other contexts, the fact that the defendants here appear to have committed multiple crimes means they could be readily charged with multiple counts, which in turn could drastically increase their sentencing exposure. Do you think they should both be subject to multiple charges, which in turn might allow the prosecutors to recommend a decade or more of prison time?
This post --- in which I mean to say "you be the prosecutor" --- was inspired by the dynamic dialogue in the comments concerning how the feds exercised prosecutorial discretion in the recent Amish case. I am now eager to have such a discussion in this case. But I want to move beyond vague assertions like "drop the hammer" and hear from you and others exactly what you think prosecutors should be recommending as precise punishment in this kind of white-collar, political corruption case in which the defendants seem ready and eager to plead guilty and show remorse.
So, I will ask you both and others again: assuming the Jacksons both plead guilty and show deep and genuine remorse for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?
Posted by: Doug B. | Feb 19, 2013 9:30:17 AM
I wouldn't trust the reporting in any story that refers to a Rolex as "gold plated." Aside from that, public corruption charges should almost always result in significant prison time as they work to undermine the entire political system. So, liberal or conservative, lock 'em up. Of course, as a dyed in the wool liberal, I generally think that sentences are longer than necessary to accomplish their peneological purpose. (Although the maximums stated above don't seem nearly as draconian as we regularly read about!) I'd go 18 months for her; 36 months for him. And I would absolutely wallop them with fines, court costs, restitution. I like the idea of staggering the sentences.
Posted by: Ala JD | Feb 19, 2013 1:25:19 PM
Doug --
"[A]ssuming the Jacksons both plead guilty and show deep and genuine remorse for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?"
I would recommend that the court defer sentencing for three months. If I were the judge, I would advise the defendants that, in that time, it would be very wise to pay every dime they owe in taxes, no excuses and no extensions. I would also advise them that, after the tax payment, they are fully to reimburse all campaign donors, again within the three months. Where they get the money is not the court's problem, and is not to be raised to the court. Excuse time is over with.
I would then tell them that I'm going to have the probation officer talk to this bi-polar-diagnosing shrink and to whomever hooked Jackson up with the shrink (probably his lawyer). I would tell him that the PO's investigation was to determine whether the claim of true and deep remorse is true. In order to facilitate that crucial inquiry, I would advise Jackson that I expected him to waive both doctor-patient and attorney client privilege. We are not going to just take this remorse claim at face value; we're going to get to the bottom of it from people who can actually shed some light. Self serving statements once you're caught just aren't going to move the ball.
As you know, Doug, I strongly suspect this sudden emergence of "bi-polar" is a complete sham, something rigged weeks or months ago in anticipation of this prosecution in order to be trotted out at sentencing. This guy is no more bi-polar than you or I (but he has a much better wristwatch). Do you not suspect a sham? Do you think the court should find out, one way or the other? Do you think Jackson should be able to hide behind privileges while whimpering that he deserves mercy because he's so sick?
Again as the court, I would advise Jackson that the sentencing hearing would reconvene in three months -- again no extensions and no excuses. At that time, I would assess whether Jackson had done what I advised, and I would listen to the PO's report.
And just to be clear, I think the prosecution's sentencing memo should recommend everything I just went through as what the judge should do.
Finally, I would advise Jackson that, at the continued sentencing hearing, it would be wise for him to refrain from any claim that this was a "mistake." A mistake is when you add 2 + 2 and get 5. This is no "mistake." It was greed and deceit, pure and simple, and I would advise Jackson that unvarnished candor goes over better with the court than gauzy bromides like "I made a mistake."
At that point three months from now, and only at that point, could one make an intelligent assessment of your key assumption of "deep and genuine remorse."
I don't want assumptions. I want facts.
Only after all that gets determined, I can tell you what I, as a prosecutor, would recommend.
Posted by: Bill Otis | Feb 19, 2013 1:41:55 PM
"even though he wasn't charged for it"
I won't complain about how mean you are, f., but given recent case-law, this is a curious thing to cite when determining sentencing.
I think staggering sentences would make sense.
As to sentencing, I'd take whatever the going rate is. His resignation (if somewhat late) and plea would factor in. His mental instability also might factor in. As another comment noted, might. The 18mos / 3y amounts seems fair but if other pols (those of each party misused funds and the like in recent years and were prosecuted for them, so there are various cases of comparison) received more for similar cases, more might be warranted.
Posted by: Joe | Feb 19, 2013 1:42:13 PM
Bill Otis' latest proposal of deference sounds and appropriately careful.
Not quite "dropping the hammer."
Posted by: Joe | Feb 19, 2013 1:46:01 PM
Bill: so out of curiosity, assuming that the Jacksons make the payments, and the PO's investigation concludes that their remorse is in fact deep and genuine, what would you recommend, as the prosecutor? What recommendation would you make if the investigation concludes that the remorse is not in fact genuine?
Posted by: Anon | Feb 19, 2013 2:05:11 PM
Anon --
As I said, no assumptions. I'll give the recommendation when I have facts not guesses.
There are many shades of gray between deep and genuine remorse and concocting a sham in order to fool the court into THINKING there was deep and genuine remorse. You only know what shade you're getting when you have the facts.
BTW, do you agree with my initial prosecutorial recommendation about paying what he owes, waiving his privileges, and not claiming a "mistake"?
Posted by: Bill Otis | Feb 19, 2013 2:16:15 PM
Very interesting approach to sentencing, Bill, especially because it is so very individualized and so focused on offender-characteristics rather than the basic offense conduct. I also find quite notable eagerness to reserve making any specific sentencing recommendation until you know a lot more about Jessie Jr. and Sandi personally.
As you know, of course, the FSG you are often so eager to extol and to make mandatory again do not formally incorporate any of the factor you stress: e.g., loss calculations under 2B1.1 are not impacted by whether or not they "pay every dime they owe in taxes, no excuses and no extensions"; Jackson's mental condition would not come into standard calculations and it is even discouraged as a departure factor; the are likely to get a 3-point reduction in their guileline calculation for "acceptance of responsibility" whether or not their remorse is genuine or phony.
I fully agree that all the facts/factors you here stress and wish to delay sentencing in order to let devleop further are essential to figuing out a just and effective sentence for the Jacksons. And this is why I think proposals to make the current FSG mandatory again are deeply misguided: you recognized in the Amish case and in this case that lots of non-guideline factors were absolute essential to sentencing justice. Why, then, are you often stating that you want the guidelines to be mandatory -- unless your real goal/hope is that prosecutors get to have exclusive control over whether and when non-guideline factors will have a role/impact at sentencing.
In any event, Bill, though I remain troubled by your expressed affinity for mandatory guidelines, I am very grateful for your artful dodging of my prompts here: you have once again reinforced my sense that you --- like all other smart folks --- fully understand that sentencing is a complicated and dynamic process that, here and elsewhere, demands resistance to simplistic labels/numbers/categories in the quest to achieve just and effective outcomes. It also leads me to continue to wonder just what federalist has in mind when he urges a sentencing hammer to be dropped on both defendants in this case.
Posted by: Doug B. | Feb 19, 2013 2:54:47 PM
I certainly respect the desire to have all the facts before making a decision, at least when it comes to the real world. But this is a hypothetical thought exercise on a blog, not a courtroom, so your response isn't much fun.
I also agree that Jackson should certainly pay whatever he owes, although I wouldn't much care if he did so after the fact as part of his sentence rather than beforehand. And I also agree that his claim of having made a "mistake" is inconsistent with deep and genuine remorse. As far as waiving privileges, I'm not so sure. Requiring Jackson to waive his privileges as part an inquiry into his remorse would be pretty extraordinary, and possibly a first step down a slippery slope. Courts decide all the time whether a defendant's remorse is sincere or not (and I agree Jackson's remorse is almost certainly self-serving) without having him waive any privileges.
Personally, I think that the stat max of five years for Jackson and three years for his wife, with restitution and staggered sentences, would be fair.
Posted by: Anon | Feb 19, 2013 3:08:26 PM
Doug --
Am I dodging? Well, let's see. I wrote this earlier today. It contains three questions: "As you know, Doug, I strongly suspect this sudden emergence of "bi-polar" is a complete sham, something rigged weeks or months ago in anticipation of this prosecution in order to be trotted out at sentencing. This guy is no more bi-polar than you or I (but he has a much better wristwatch). Do you not suspect a sham? Do you think the court should find out, one way or the other? Do you think Jackson should be able to hide behind privileges while whimpering that he deserves mercy because he's so sick?"
I don't think you answered any of the three. Who did you say is dodging?
"Very interesting approach to sentencing, Bill, especially because it is so very individualized and so focused on offender-characteristics rather than the basic offense conduct."
It's focused that way in order to respond to the specifics of your question about Jackson's alleged remorse. And nowhere did I state that basic offense conduct would not be considered. It should and will be, certainly if I'm the AUSA writing the sentencing memo.
"I also find quite notable eagerness to reserve making any specific sentencing recommendation until you know a lot more about Jessie Jr. and Sandi personally."
Actually, the curiosity I expressed was limited to three specific things: Whether they're going to pay what they owe, whether he concocted this supposed bi-polar stuff to fool the sentencing court, and whether he's going to continue the charade that this enormous swindle was a "mistake."
"As you know, of course, the FSG you are often so eager to extol and to make mandatory again do not formally incorporate any of the factor you stress..."
Neither do the advisory ones, so one might ask what the point is. But again, I digress. Each range has a 25% variation top to bottom, and the judge can do what he wants with that. And while it's customary to grant the 3-point acceptance reduction for a plea, it's not necessary in the slightest, as all the caselaw holds. If it were necessary, the zillions of complaints I hear on this blog about the "trial penalty" would be even louder than they are now.
"I fully agree that all the facts/factors you here stress and wish to delay sentencing in order to let devleop further are essential to figuing out a just and effective sentence for the Jacksons."
Then I take it you would agree with me that either demanding or giving a specific number-of-months recommendation now is a mistake. Why, then, is my declining to do so a dodge?
To be continued, next post.
Posted by: Bill Otis | Feb 19, 2013 3:41:00 PM
Continuation from last post:
"And this is why I think proposals to make the current FSG mandatory again are deeply misguided: you recognized in the Amish case and in this case that lots of non-guideline factors were absolute essential to sentencing justice."
What I actually agreed to was that individualized factors were essential for the PROSECUTOR to consider in MAKING A SENTENCING RECOMMENDATION, which was, quite explicitly, the issue in both the Amish case and in this one (see, e.g., your own title, "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?").
A party's recommendation is, to say the obvious, different from the court's sentence. Indeed, in the Amish case, my primary heartburn was not DOJ's off-the-wall sentencing recommendation, but its decision to TAKE THE CASE AT ALL. (It was a local case). But whether to bring a case is, of course, no business of the judicial branch whatever.
"Why, then, are you often stating that you want the guidelines to be mandatory -- unless your real goal/hope is that prosecutors get to have exclusive control over whether and when non-guideline factors will have a role/impact at sentencing."
For two quite sensible reasons you ought to agree with. First, the rule of law is better than the luck of the draw. You yourself put up a post about some mob character, no less, who got sentenced to do Hurricane Sandy cleanup rather than the jailtime he would almost certainly have gotten under mandatory guidelines. Good grief.
Second, simply because the (Constitutionally given) charging power of prosecutors can lead to disparity is hardly a reason to ADD TO THE PROBLEM by having yet more disparity piled on top of it by imposing little to no restraint on widely varying judges. You often cite Gleeson or Kane or Jack Weinstein. But things are very, very different in the EDVA. Judge-to-judge disparity based on geography, temperment, politics, ideology or just whether he's having a bad day is not right, either for the defendant or the government. Both deserve better than a lottery.
Posted by: Bill Otis | Feb 19, 2013 3:44:46 PM
I think each and everyone of us are somewhat mentally ill at some point in our lives.. If not only for a few grave errors, then what the hay, they may never catch me anyway...
This mental illness gimick is way too old, we have not been behind barn eating turnups all of our life have we..
Jessie needs to get what will be a long sentence for him, 3-5.. Less for his wife...
She just lavished in the benefits from his position....a little too much. Should of known, something wasn't above board...
He abused his position of power....If these guys continue to get hammered maybe someday
the general population will have more respect for the powers to be...My .02 worth..
Posted by: MidWestGuy | Feb 19, 2013 3:48:52 PM
Anon --
"I certainly respect the desire to have all the facts before making a decision, at least when it comes to the real world. But this is a hypothetical thought exercise on a blog, not a courtroom, so your response isn't much fun."
I retired from the courtroom to go to pasture teaching, but the courtroom never retired from me. Besides, I have to stay on my toes when debating a sharp guy like Doug.
Posted by: Bill Otis | Feb 19, 2013 3:49:16 PM
Anon --
I have reconsidered my reluctance to make a sentencing recommendation now, and have decided to launch. So here it is.
The guillotine.
No, wait, drawing and quartering.
No, that won't do either. It has to really hurt, so, even though it's probably an Eighth Amendment violation, this is my recommendation: He has to write on the blackboard one thousand times, "Mitt Romney has a great personality."
Posted by: Bill Otis | Feb 19, 2013 4:18:53 PM
If Doug B. was on hand each time, I think Bill Otis will be "on his toes" and be forced to resist his "Bill Otis" caricature character more often, so I appreciate Doug B. keeping BO "on his toes."
Posted by: Joe | Feb 19, 2013 6:59:53 PM
'I don't think you answered any of the three. Who did you say is dodging?'
Oh please give us all a break, what a weaseling none answer, c'mon it's a straight forward question. How much time in your honest opinion would you consider appropriate to give with the information you have so far??? Can't you come up with an honest answer to a simple question like that without doing the Charleston Shuffle?
Posted by: Randy Gile | Feb 19, 2013 7:15:06 PM
Randy Gile --
If you don't want to know highly pertinent facts before deciding on a sentence, that's your choice. But I'd like the info. Is there some particular reason I should care if you want to get huffy because you prefer to act in haste and ignorance?
Posted by: Bill Otis | Feb 19, 2013 8:27:29 PM
Joe --
"If Doug B. was on hand each time..."
He IS on hand each time. He owns the blog and can read every entry.
"...I think Bill Otis will be 'on his toes' and be forced to resist his 'Bill Otis' caricature character more often, so I appreciate Doug B. keeping BO 'on his toes.'"
Gosh, Joe, when are you going to thank me (also a law professor) for keeping Doug "on his toes" in preaching to his pro-defense choir? I have a mostly adversary audience. He has a mostly friendly audience. Who has to stay on his toes?
P.S. Could you put in a word to get Gritsforbreakfast off his quite nasty "Gritsfrobreakfast" caricature character? Thanks!
Posted by: Bill Otis | Feb 19, 2013 8:37:33 PM
not bad bill.
But!
LOL always got to have a but!
I don't agree with the restitution for donors! if your retarded enough to give money to someone with no contract. It's on YOU!
As for the waiving privilage. Sorry again i don't agree. Except and unless two things happen
1. Said privilage is waived ONLY for this one area of questions.
2. Waiver comes in ONLY after the state can prove to a judge some evidence it's fake!
sorry in my book in any conflict between a citizen and the state the burden of proof is always on the state!
If they can show he's full of it to a judge. fish away. Otherwise keep their mouths shut!
Posted by: rodsmith | Feb 20, 2013 1:12:44 AM
rodsmith --
"sorry in my book in any conflict between a citizen and the state the burden of proof is always on the state!"
That's true up until the time of conviction, but once that is done, if the defendant wants to show that he's contrite, he has the same burden any proponent of a proposition has. The guilty verdict fulfills the government's burden.
"If they can show he's full of it to a judge. fish away. Otherwise keep their mouths shut!"
Let me ask you this: Here's a guy with enough clout to get elected to Congress for several terms, and is to all previous appearances a successful person by any normal standard. Now, however, just as his prosecution and sentencng hove into view, he develops a dreadful (but, oddly, literally invisible) disease convenienty designed to -- ready now? -- show that he wasn't really responsible! That $43,350 watch wound up on his wrist because he's uh..............crazy. That's it! That's how ANYONE surreptitiously, and over many years, builds up a huge fortune. By being crazy!
Does a story like that strike you as a little, uh, odd?
The guy has been a faker for years and he's a faker now.
Posted by: Bill Otis | Feb 20, 2013 2:58:53 AM
Bipolar disorder is a spectacular psychiatric disorder. It cannot be imitated by even the best actor. Overspending is a a minor feature. Tough to talk at 200 words a minute for hours. Tough to generate highly contagious mirth. They give away their possessions, rather than take for themselves. Was the defendant acting like Jonathan Winters or Robin Williams? They come closest to depicting mania.
I doubt that the Congressman imitated those features. I suggest a new set of charges.
Health insurance fraud. Charge the collaborating doctors, and not just the defendant if the aim of the hospital admission was to fool the court. The health bill may have exceeded the total misused.
Posted by: Supremacy Claus | Feb 20, 2013 5:09:43 AM
Bill et al.: Thanks for keeping this thread going while I took a night off. Now let me respond to some of Bill's main points:
1. You ask of me Bill: "I strongly suspect this sudden emergence of 'bi-polar' is a complete sham, something rigged weeks or months ago in anticipation of this prosecution in order to be trotted out at sentencing.... Do you not suspect a sham? Do you think the court should find out, one way or the other? Do you think Jackson should be able to hide behind privileges while whimpering that he deserves mercy because he's so sick?"
To respond directly: I agree that this (new?) mental condition is being hyped because of these criminal charges, but I would not readily call this a "sham." More critically, in addition to agreeing privileges should not be used as shields and swords by defendants, I agree 100% that the court (and the prosecutors) need to further investigate these mental illness claims in order to figure out a just/effective sentencing result. But, to stay on my main point, this is why the FSG bother me as rigid mandates because they make largely irrelevant to any guideline calculations any mental health issues.
2. I never suggested that you "state that basic offense conduct would not be considered." I just highlighted that you think (wisely in my view) that many other offender-specific considerations are also critically important. But, again to stay on my main point, this is why the FSG bother me as rigid mandates because they make largely irrelevant to any guideline calculations any offender considerations.
3. You ask, when I highlight that the mandatory FSG gave little or not import to the factors you have stress, "neither do the advisory ones, so ... what [is] the point". That IS the point, in the post-Booker advisory scheme, prosecutors and judges have the opportunity and an obligation to consider all relevant sentencing factors dynamically; in the pre-Booker mandatory FSG system, the guidelines marginalized so many factors that I think we both deem very important.
4. You ask if I agree with you "that either demanding or giving a specific number-of-months recommendation now is a mistake." It is only a mistake if you agree with my belief --- as it seems you do --- that a lot more than just basic offense conduct and criminal history is absolutely essential to just/effective sentencing. But if you really believe the FSG are so sound they should be mandatory again, the equation is different. And that is why I viewed your dynamic responses here as evidence you really do not think a mandatory FSG system would be better than what we have now (and you comments in the Amish case also went to this reality).
5. In defense of advocating making mandatory again the FSG, you rightly note that "the rule of law is better than the luck of the draw." I agree 100%, but the rule of mandatory bad/rigid sentencing law is much worse than the rule of wise/advisory/transparent/reviewable sentencing standards. I have long favored guideline sentencing, but I want good guidelines (and I think the standards of 3553(a) are much better than many of the diktats of the FSG).
I agree that, as a general matter, "disparity based on geography, temperment, politics, ideology or just whether [one is] having a bad day is not right, either for the defendant or the government." But I think this disparity is a MUCH bigger problem in the offices of federal prosecutors where (1) geography, temperment, politics, ideology are built even more into the job description, and (2) there is no transparency or review of any charging/bargaining decisions to even help potentially mitigate the impact of geography, temperment, politics, ideology. You readily recognized this reality in the Amish case as you criticized what you saw as the impact of politics/ideology at both the charging and sentencing state AND I assume you are glad Judge Polster had extra sentencing discretion to lower sentences in order to balance the impact.
This is the key point: judicial sentencing discretion can and often will tempter the impact of "geography, temperment, politics, ideology" as it impacts prosecutorial decisions. And, especially because you are so very quick to stress that the constitution makes prosecutorial discretion unreviewable, I would think you would welcome giving judges discretionary sentencing power to provide an indirect check/balance on the lottery-like potential of federal prosecutorial discretion.
Indeed, this gets me back to the focal point of this post: I think there is good reason to think/fear that "geography, temperment, politics, ideology" might be leading the prosecutors in Illinois to go soft on the Jacksons. And that's why I am asking folks how they would seek to exercise prosecutorial discretion in this context given what is already known about the crimes and the offenders here.
Posted by: Doug B. | Feb 20, 2013 10:04:48 AM
Prof. Berman: not to take away from what was an otherwise thought-provoking post, but the Jacksons are not being prosecuted in Illinois. Their case is in federal district court in D.C.
Posted by: Anon | Feb 20, 2013 11:43:08 AM
hmm
"That's true up until the time of conviction"
who said? Where is that in the constitution?
as for this one!
"Here's a guy with enough clout to get elected to Congress for several terms"
lol considering the totally fucked up condition of the country this one actualy works IN his favor most of that buch has been living in a fantasy world for a good 40-50 years.
as for the suddenly appearance of the so-called illness. That one i will certainly give you. But if the state things it's sudden. Then it's on them to prove it is fake!
Posted by: rodsmith | Feb 20, 2013 12:06:50 PM
