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July 28, 2013

Is 898-year federal sentence symbolic and meaningful or senseless and misguided?

The question in the title of this post is prompted by this federal sentencing story out of Texas, headlined "Victim Assaulted by Fake Producer Finds Closure in Sentencing," which was sent my way by Josh Blackman. Here are the basics:

898 years is what a Gemase Lee Simmons will now have to serve for 39 counts of various bank fraud and child pornography offenses. Simmons would tell young men and women that he had a modeling agency and as part of their "sessions" would take naked pictures of some of them.

Bianca Love, a victim, told the judge in federal court that Simmons had scammed her out of money and sex.

Jailers also informed the judge that while waiting for his sentencing Simmons had managed to get other sexual predators to perform sex acts on him. According to investigators Simmons told 2 other prisoners that it was part of a test the U.S. Attorney's Office administered.   Simmons told them he would help them to pass it so they would get less time.

For a much more literary account of this case, I discovered this fascinating opinion discussing the defendant and his crimes.  The opinion is authored by Chief District Judge Fred Biery (WD Texas) to explain his conclusion, after a bench trial, that Simmons was guilty of all the counts against him (and likely many more).  This opinion is a must read in part because, in less than four pages, it makes reference to, inter alia, The Wizard of Oz, Catch Me if You Can, Something Wicked This Way Comes, and Dante's Inferno.  In addition, in response to a quote from the defendant's trial testimony, the judge in this opinion drops a footnote which simply reads: "LOL".

Though I really enjoyed reading the opinion linked above and I can see why Chief Judge Biery was eager to throw the book at Gemase Lee Simmons, I still question the decision to impose a sentence of 898 years.  (In addition, as Josh suggested to me, such an extreme sentence might give the defendant here a non-frivolous claim on appeal that his sentence is unreasonable.)   I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page.  While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.

That all said, the fact that Chief Judge Biery imposed a sentence of 898 years caught Josh's attention and mind, and perhaps that was part of what Chief Judge Biery hoped to achieve with this remarkable sentencing term.  And if Chief Judge Biery were to write another sensational (and short) opinion to explain his lastest decision in this case, I might well come to the conclusion that the societal ends justify the sentencing means here.

July 28, 2013 at 11:39 AM | Permalink


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I'm disappointed that you've chosen to praise this ridiculous opinion, which has no apparent purpose other than to get cited on blogs. It surely doesn't satisfy Federal Rule of Criminal Procedure 23(c), which requires the court (if request) to state "specific findings of fact" justify its verdict after a bench trial. And can we stop pretending to be impressed when a judge('s law clerk) inserts footnotes to random pop culture with no real connection to a case? Ha ha, good one, judge, you sure are "with it." I can see having a little fun with the perhaps overly self-serious parties in a civil case, if the judge is talented enough to actually be funny, but it strikes me as particularly inappropriate in the criminal context generally, and doubly so in a child sex case with multiple real victims.

Posted by: Jay | Jul 28, 2013 3:04:50 PM

The opinion is a bit too cute, including a footnote that says (in full) "LOL."

Footnotes in a four page opinion to explain far from obscure films are also gratuitous.

Posted by: Joe | Jul 28, 2013 3:50:32 PM

The opinion(1).

(1) LOL (That's facetious).

I'm glad to see that Jay and Joe reacted as I did. I am no fan of snobbery but if one needs to footnote Dante's Inferno that says something woefully sad about Western cultural decay.

Posted by: Daniel | Jul 28, 2013 8:55:05 PM

If a sentence of almost 900 years is absurd, so is getting your knickers in a bunch over it. It is not like the guy is going to DO 900 years. The result is the same as Prof B's recommended 100 year sentence.

Posted by: TarlsQtr1 | Jul 29, 2013 8:54:56 AM

Can we now all agree that the judicial system has become nothing more than a JOKE.

Posted by: kat | Jul 29, 2013 9:01:44 AM

I suggest that the Sentencing Commission develop a formula/rule that places a cut-off point on the length of sentences: for instance, if that point is 100 years, then a fifty-five year-old offender would/could secure a sentence of no longer than forty-five years. Have some language about gain/good time, but aim at some more realistic life-expectation term. I had a client with a more than 800 year sentence and many of the comments I heard were: "Do the best that you can!"

Posted by: alan chaset | Jul 29, 2013 9:27:40 AM

In reality, this kind of sentence is pretty rare in the federal system though, no? (and it's the result of a judge choosing to stack sentences, not so much the guidelines, which just go to life after 360 months) I associate 99-year sentences and the like more with state court.

Posted by: Jay | Jul 29, 2013 10:23:01 AM

When someone is sentenced to a very long sentence are they eligible for parole after some percentage of it passes? Or, is considered (in each jurisdiction) some sort of "life" sentence where that rule does not apply?

There is also the chance that one of more of the charges in question will be removed because of appeals or some other reason. I think a major problem with a "cut-off" is that years reflect the crimes committed.

Basically, if you don't tack them all on, the person in effect gets "free" crimes, since there is a quota years. They still do really given the limited life span, but at least symbolically, there is some value in on paper taking care of each and every crime committed.

I wonder how this would work if people actually lived very long lives. Any sci fi books where some vampire is detained for 400 years and then let go?

Posted by: Joe | Jul 29, 2013 10:30:21 AM

kat --

"Can we now all agree that the judicial system has become nothing more than a JOKE."

Sure we can -- if one sentence by one judge at the tail end of a single unusual federal criminal case (as opposed to 50 state jurisdictions doing all manner of civil cases, whose number dwarfs the criminal ones, state or federal) is taken as representative of "the judicial system."

You really nailed that one, kat.

Posted by: Bill Otis | Jul 29, 2013 2:29:43 PM

Joe, that would be a state-by-state question. The federal system does not have parole, so anything that when added to the age of the inmate exceeds 100 is pretty much a life sentence.

In my state, anything totalling over 75 can be reduced by the parole board to a 75-year sentence for purpose of calculating parole eligibility.

A sentence like this is more of a rhetorical statement -- you will get a heavy penalty for each count of this type that you committ and, if you commit multiple offenses, you will get consecutive sentences. Sometimes making the rhetorical point that you don't get a freebie on the fifth and sixth offense just because of the length of the sentences on the first four offenses and that you are being punished for all of the offenses has value to society and to the victims of the individual offenses, although it obviously offends some in the defense bar.

Posted by: tmm | Jul 29, 2013 2:53:43 PM

I thought that might be the case. Thank you tmm.

Posted by: Joe | Jul 29, 2013 4:39:15 PM

tmm, Joe -- Right, what's going on here is that none of the statutes allow for a life sentence, so the judge has to run several statutory max sentences together consecutively to end up at a very long term of years sentence (I'm not sure what the def's guideline range was here, but I imagine life or close to it). I'm not sure why it's supposed to be troublesome if a life sentence wouldn't be. And if the objection is to a life sentence then it's really more a substantive one than a procedural quarrel with 898 year sentences.

Posted by: Jay | Jul 29, 2013 10:50:26 PM

The reality is that this "unusual" case is becoming more the "norm". An 898 year sentence, come on, in reality what does that even mean? That he gets life?. Then just say "Life". Throwing out meaningless sentences just makes the judicial system appear, dare I say, Meaningless.

Posted by: kat | Jul 30, 2013 12:29:53 PM

Look, if he behaves himself he could accumulate enough good conduct time to be out in barely 760 years.

Posted by: JWB | Jul 30, 2013 1:11:17 PM

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