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October 22, 2013

In dissent, Judge Bright laments Eighth Circuit affirmance of 115 months in prison PLUS two life sentences for repeat bank robber

Dissenting from a panel affirmance today in US v. Scott, No. 12-3131 (8th Cir. Oct. 22, 2013) (available here), Judge Bright expressed these (and other) notable points about what he clearly considers an unreasonable sentence: 

The sentence of 115 months in prison plus two life sentences imposed on Michael Scott by the district court represents a prime example of what may be called “gilding the lily.”  It is unreasonable and excessive.  For all practical purposes, the roughly 39-year mandatory minimum sentence in this case — for a defendant who is 56 at the time of sentencing — would have itself amounted to a sentence of life imprisonment.  I ask what more is required.  The sentence in this case is unreasonable and simply represents an effort to send a message of being tough on crime.  But that’s not the purpose of a sentence....

As an appellate judge, I add another observation.  The federal courts are now entering a new era of sentencing.  Eric H. Holder, Jr., the United States Attorney General, has recently called for a new approach to criminal sentencing in the federal courts. The Attorney General emphasized the harsh reality that, as it stands today, “our system is in too many respects broken.”  Eric Holder, Attorney General of the United States, United States Department of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.  Indeed, I agree with the Attorney General that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.

The clearly excessive sentence imposed in this case illustrates very graphically the broken criminal justice system in the federal courts.  Here, had Scott received a 39-year sentence — which the parties agreed was the mandatory minimum sentence in this case — he would be in prison until he was 95 years old. Yet the district court felt the need to impose a 115-month sentence followed by two life sentences. The district court justified the sentence by emphasizing Scott’s “criminal history and the need to protect the public.” But just how much protection does the public need from a 95- year-old man — assuming Scott were to live that long? According to the National Vital Statistics Reports, at the time he was sentenced, Scott was expected to live for another 27 years, or until he is about 83 years old.... A 39-year sentence would have been more than enough to serve as a deterrent and an appropriate punishment for a series of bank robberies, during which no one fired a gun and no one was physically injured.  But instead, the district court imposed a substantially unreasonable sentence that is greater than necessary to accomplish the goals of sentencing. See 18 U.S.C. § 3553(a).  This sentence is not justified and is improper and I will not affirm a sentence that is obviously too harsh and imposed simply to appear tough on crime.

I would reverse and remand this case with instruction to the district court to impose a sentence no greater than a 39-year sentence.

October 22, 2013 at 02:03 PM | Permalink


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This Defendant had a prior criminal history (taken from Court's Opinion) that included burglary, aggravated assault and two separate robberies. Combine that with the three separate Bank Robberies for which he was currently being sentenced and we get the following reasoning from the opinion. " The district court noted Scott had "spent a lot of [his] life in prison," but "prison hasn't had much of a rehabilitative effect upon[Scott]' By locking Scott up," the district court said'we know ther'e not going to be any more bank robberies at least at his hands and we don't have to worry about his possessing a gun."

Posted by: Dennis Skayhan | Oct 22, 2013 3:34:22 PM

Okay, so Bright would only allow the breaks of sentencing discretion to go in favor of the offendor.

Too bad this sort of thing is not itself sufficient grounds for removal from office. I have often thought that the acquittal of Samuel Chase was not that great an outcome. (If you could get two-thirds of the senate to agree that a particular judge should not be in office I would say there's a pretty good likelihood that judge should be gone even if what they have done has not risen to the level of actual criminality).

Posted by: Soronel Haetir | Oct 22, 2013 3:49:48 PM

Judge Bright is correct. The Federal criminal sentencing scheme is frequently overkill, and is very expensive for the taxpayers. I was incarcerated in the 2000s with a man who had committed a series of armed bank robberies while a drug addict in his 20s. The Judge ran his 12 year sentences for the armed bank robberies concurrently, but then was compelled by statute to tack on about 60 years of mandatory consecutive time (5 years each x 12 bank robberies) for carrying a firearm while committing a crime of violence. After serving the 12 years for the bank robberies, this defendant had been clean and sober for many years and had completed many educational programs. He is plainly not the same drug addict who robbed banks in his 20s. But he will probably die in prison because of the mandatory consecutive sentences from the gun charges. This makes no rational sense and will cost the taxpayers about $40,000 per year (in a penitentiary) until he dies. It is grossly wasteful, and is unnecessary to protect the public.

Posted by: Jim Gormley | Oct 22, 2013 4:12:19 PM

Q: What do Myron Bright and Jack Weinstein have in common, other than being ideologues in robes?

A: They're both over 90.

So more power to them! I hope I'm still going at that age.

But their pro-criminal meanderings remind us that it's time to consider a mandatory retirement age for judges. Both have taken to writing essays thinly masked as opinions, and neither makes much pretense of judicial neutrality.

Posted by: Bill Otis | Oct 22, 2013 4:18:28 PM

When Judge Weinstein was a youngster judge, how differently did he act?

Posted by: Joe | Oct 22, 2013 4:54:07 PM

Joe --

I wouldn't know. I'm old, but not THAT old.

Posted by: Bill Otis | Oct 22, 2013 5:07:30 PM

Bill, greetings! You write about Bright's "pro-criminal meanderings." I disagree. There's nothing pro-criminal and nothing meandering about the observation that the sentence here was excessive. As you have agreed in the past, a sentence that is too long is as unjust as a sentence that is too short. Both bring the criminal "justice" system into disrepute.

Posted by: Michael R. Levine | Oct 22, 2013 5:17:49 PM

Hi Michael --

You and I just disagree on what is "excessive." As the majority points out, the defendant began his criminal career at age 15 and has only gotten worse. This time, at age 56 and having learned nothing about behaving himself, it was two (or was it three?) gun-toting bank robberies. It's a matter of luck that no one got killed.

In my view, a guy like that belongs in the slammer for life. The problem here is not the district judge. The problem here is the defendant.

This is especially true, as the majority points out, in the age of Booker-Gall-Kimbrough, in which district courts enjoy maximal discretion. I am not a fan of that degree of discretion, but while it's the law, deferring to it seems to be the order of the day.

As for the system's being in disrepute: I would be very interested in any even vaguely reliable evidence that most of the public views the sentence in this case as going overboard. My guess is that, when people heard about the facts of the offenses and the defendant's extensive and violent criminal history, and then about the sentence, the reaction would be, "Too bad the judge couldn't give him more."

P.S. I had to laugh when I saw that Bright cited a 52 year-old sentencing essay by a district judge from Minnesota.

Posted by: Bill Otis | Oct 22, 2013 5:38:17 PM

I have followed the opinions written by Judge Bright for many years. He sat on several panels which decided cases of mine. He is the co-author, with Ron Carlson and Imwinkelreid, of a book called Objections At Trial which is a small handbook which one can have up at counsel table and employ when arguing motions or whatnot. He is over 90 years old and bright as his name implies. I agree with his opinion.

Posted by: Liberty1st | Oct 22, 2013 9:40:18 PM

Let me see. If the sentence stands, the perp dies in prison. If it is overturned, the perp dies in prison.

Couldn't it also be said just as easily that Judge Bright and the defense attorneys are guilty of "gilding the lily" when a successful appeal ends with the same result as a lost one? The 8th Circuit had nothing better to spend its time and ink on? Not to mention posters here crying about some guy in prison who did 12 bank robberies?

Let's scrap appeals like this one and that can pay for Jim Gormley's prison friends.

Posted by: TarlsQtr1 | Oct 23, 2013 1:26:07 PM

Lets just scrap all appeals tarheel.

Posted by: Liberty1st | Oct 23, 2013 10:51:36 PM

Liberty 1st-A red herring, ad hominem, AND a straw man in 6 words! Nice job.

As is obvious to anyone with a third grade education, I never said to "scrap all appeals." What I DID say was, "Let's scrap appeals like this one..." (meaningless) and use the savings to pay to keep bad people in prison.

The most telling part of your post is what you did NOT say. You failed to even attempt to dispute that the judge and defense attorneys are "gilding the lily" with an appeal that is meaningless. If they win, he dies in prison. If they lose, he dies in prison.

The amusing part is watching the pretzel-like logic of your ilk. Y'all say that we have to save money and let bad people out of prison but then look completely the other way when attorneys and their clients are scamming the system with meaningless appeals like this one.

Posted by: TarlsQtr1 | Oct 24, 2013 8:41:41 AM

TarlsQtr1 --

"Liberty 1st-A red herring, ad hominem, AND a straw man in 6 words! Nice job."

Plus he got the state wrong. You're not a Tar Heel. Other than that, though..................

It is something how Bright wastes his breath admonishing the district judge for wasting his breath.

Bright and Weinstein are both at the age where people view them as cute, so they can say pretty much anything they want and no one gets mad. I admit this has some endearing qualities, but it's not particularly to be desired in a federal judge.

Posted by: Bill Otis | Oct 24, 2013 9:01:21 AM

"If the sentence stands, the perp dies in prison. If it is overturned, the perp dies in prison. Couldn't it also be said just as easily that Judge Bright and the defense attorneys are guilty of "gilding the lily" when a successful appeal ends with the same result as a lost one?"

Presumably, the defense asked for some more favorable result and didn't win on that part of their request.

I certainly think that "truth in sentencing" (and sentencing statistics) are victims of silly overkill sentences like this one (or the sentences of hundreds or even thousands of years that our courts sometimes produce). Aesthetically, it is ugly and it is a symptom of an unsound underlying sentencing theory, even though these particular cases are rarely much of a practical concern, because any way you cut it they have very similar practical effects. The real problem is that the same flaws that produce absurd sentences for serious criminals that can't humanly be served also produce excessive sentences in the case of less serious crime. An appropriate sentence for someone convicted of two crimes in the same trial is almost always less than the sum of the appropriate sentences for either crime standing alone and legislators have a particularly hard time comprehending this reality as they legislate.

Posted by: ohwilleke | Oct 25, 2013 7:28:31 PM

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