« In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates | Main | Florida Supreme Court wasting no time trying to figure impact of Hurst »
January 13, 2016
"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"
The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:
Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges. Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics. Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.
This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence. This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.
January 13, 2016 at 02:48 PM | Permalink
Comments
Let's.
Removal of the defendant from his family would remove a waking nightmare. Violent and abusive. Fills the house with crack smoke. Repeatedly beats the mother. Even if not drunk, it is always little Shaniqua's, age 10, turn to have sex with him.
Then, he is a real knucklehead, and owes money to drug dealers. They are coming to kidnap the kids until they get paid. Being loyal only to himself, he does not care, and little Shaniqua has to use her own street smarts to escape. So that did not work. And now, they are driving by with automatic weapons to settle the matter, with little Shaniqua, having successfully escaped their clutches, now skipping rope with her three friends in front of the house.
Is that what the lawyer dumbass has in mind as a new mitigating factor?
If there is tremendous economic benefit to the public from killing or incapacitating this bird, the value to the family is priceless.
There is something deeply wrong and stupid with the lawyer. You are really stupid. Did I say, lawyers are extremely stupid. I may have forgotten to mention it. Lawyers are unbelievably, mind bogglingly stupid.
Posted by: Supremacy Claus | Jan 13, 2016 7:30:01 PM
S.C. How did you get out of the locked ward this time?
Posted by: anon | Jan 14, 2016 12:25:39 AM
S.C. I've told you a hundred times: on Wednesday, you take the blue pill, not the yellow one.
Posted by: anon2 | Jan 14, 2016 12:27:55 AM
While I might disagree with the rambling nature of SC's discourse I very much agree with the actual message presented. I've seen little evidence that the typical felon approaches their family life with any different outlook than their 'work'. Meaning that the family responsibilities now being pushed are just one more item that the con is trying to use for advantage rather than out of any actual sense of duty.
Posted by: Soronel Haetir | Jan 14, 2016 2:20:45 AM
Anons. How did people with such high native intelligence get to be so mentally retarded and disloyal to the public interest, as you two lawyer dumbasses? You are not just stupid, you are unbelievably stupid. People with mental retardation, in Life Skills Class, age 7, have more sense than you lawyer dumbasses.
Posted by: Supremacy Claus | Jan 14, 2016 8:27:44 AM
SH. Every element of my rambling has been reported in news articles. None is imaginary.
Posted by: Supremacy Claus | Jan 14, 2016 8:28:43 AM
Anons. You are too stupid to come up with an answer to my question as to how you got so unbelievably stupid. It is not good. It is evil. It is in bad faith.
Hint. Initials, RS.
That's right, rent seeking. A synonym for armed robbery. In your stupid cases, the public not only gets nothing for its taxes collected at the point of a gun. It gets exposure to your super toxic client loosed on the public.
Why do you protect,, privilege, and empower the criminal? To generate a few lousy government make work jobs for yourselves.
Not just stupid, evil, toxic and deadly to the family you are lying about trying to help.
Posted by: Supremacy Claus | Jan 14, 2016 8:37:54 AM
Anons. Do you know who originated the idea behind the Note written by this vile feminist lawyer, 20 years ago?
No. You are too stupid.
Jack Weinstein.
Do you want to support any idea supported by Jack Weinstein?
I can give you the answer because you are too stupid. No. Because it will make you look stupid and evil, just as Jack Weinstein is.
Posted by: Supremacy Claus | Jan 14, 2016 8:45:52 AM
Anons. Here is something stupid.
You want to counter the victim impact statement with the family responsibility statement. So the probation officer visits the family and interviews them about your client. They report their being terrorized and traumatized. He puts that in his report.
Now you are objecting to the report of unindicted crimes against the family, to aggravate his sentencing, and are demanding that a jury decide. Why? To generate more pointless procedure, and more lawyer make work jobs.
Stupid and evil. To make a buck at the cost of $millions in damages to victims, especially black ones.
Stupid, evil, and racist.
Posted by: Supremacy Claus | Jan 14, 2016 8:56:09 AM
Judges do consider such information and vary downward or in a rare case upward under §3553.
Posted by: lawdevil12 | Jan 14, 2016 12:29:20 PM
See e.g., U.S. v. Bannister 786 F.Supp.2d 617 (E.D.N.Y.2011) (“Incarceration affects the lives not only of prisoners but of those around them. Families of prisoners face higher rates of divorce, separation, domestic violence, and developmental and behavioral problems among children than the families of non-prisoners. Prisoners' children may experience numerous consequences of incarceration, including loss of contact with the incarcerated parent, strained relationships with caregivers, a diminished sense of stability and safety, economic insecurity, social stigma, shame, increased risk of drug involvement, and susceptibility to adverse peer pressure and risky behavior. See generally Patricia Allard & Judith Greene, Justice Strategies, Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration (2011), available at http:// www.justicestrategies.org/sites/default/files/publications/JS–COIP–1–13–11.pdf. These children are at “greater risk of diminished life chances and criminal involvement, and at a greater risk of incarceration as a result.”
Posted by: Michael R. Levine | Jan 14, 2016 6:21:45 PM
OMG, such sniping going on here.
Did anyone read The Note?
There are two sides to the family impact issue. Yes, maybe some families want the inmate out of the house, out of their lives. Maybe that person has had such a negative impact on the family that the relatiionship needs to be severed, and a family should be allowed to voice this in an assessment.
The other side of the coin, there are plenty of supportive families who rely on that inmate as a contributing member of the household, as a financially and emotionally supportive mother, father, sister, brother, husband, wife, son or daughter. A long prison sentence to these families can mean the difference between a roof over their heads or living on the street. The difference between having a parent around while they're growing up and spending a childhood "visiting" a parent in prison.
There is no "typical felon" as SH suggests. Every case is different, circumstances and crimes are different. Why not add family impact assessments as an added component at sentencing? Who would it hurt?
Posted by: kat | Jan 15, 2016 9:52:10 AM
Kat. Whom would it hurt? The children. The mother wants the money the felon will be bringing in. Because she has no morals, she has no problem spewing bastard after bastard by different baby's fathers. She no problem pimping her pre-adolescent daughter for the enjoyment of the felon and his visitors and buyers. She herself depends on him to supply her addiction. You want to interview her to assess whether the felon should go home. She is a little biased. And the children will say whatever they are told or face the physical consequences.
You are not a stupid lawyer. Adding family responsibility as yet another false lawyer mitigation is catastrophic to the children if you think about who is going to prison today, the worst of the worst.
Of course, the lawyers are not just stupid. They are evil and racist.
Posted by: Supremacy Claus | Jan 15, 2016 12:10:41 PM
I can't find the part of 18 USC 3553(a) that says minimizing impact on defendant's family is a purpose of sentencing. Can't find it in Booker either.
Posted by: USPO | Jan 15, 2016 1:35:34 PM
USPO writes that he cannot find in Booker anything that says minimizing impact on defendant's family is purpose of sentencing. USPO is wrong because Booker allows the court to consider any factor that bears on sentencing including effects on family members. See Bannister above; see also U.S. 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. Husein 478 F.3d 318 (6th Cir. 2007) (District court did not abuse its discretion by departing downward on the basis of family circumstances, specifically on the finding that defendant was “irreplaceable” to her family when sentencing defendant convicted by guilty plea of conspiracy to possess and distribute ecstasy; although a downward departure based on family circumstances was a discouraged factor to consider in sentencing, defendant was personally responsible to a significant extent for the physical and financial support of her disabled father, mother, and minor siblings, and jailing defendant not only would have forced her mother to remain at home to care for her father, but would have put the entire family on welfare); 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 life-threatening 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 devastating effect mother’s imprisonment would have on defendant’s 8-year old son who was already suffering from trauma of accidental death of his sister who found and discharged the firearm); U.S. v. Wadena 470 F.3d 735 (8th Cir. 2006) (where 67 year old defendant convicted of mail fraud and guidelines 18-24 months, proper for district court to impose below guideline sentence of probation, in part, because he lives with “an adopted adult son who suffers from fetal alcohol syndrome” for whom, since the death of his wife, he is the “sole caretaker”); 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 single parents.”); U.S. v. Antonakopoulos 399 F.3d 68, 81 (1st Cir. 2005) (in bank fraud case, on remand district court may consider fact that defendant was caretaker for his brain damaged son as grounds for sentence below guideline range even though there were alternative means of care so defendant apparently did qualify for traditional departure) U.S. v. Leon, 341 F.3d 928 (9th Cir. 2003) (in false income tax return case court affirms district court's downward departure of six levels from 30 months to 10-16 months granted because defendant sole caregiver of his wife who suffered from renal failure and is suicidal-court reaches same result whether standard is abuse of discretion or de novo as required by Feeney amendment); 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. Hammond, 37 F.Supp.2d 204 (E.D.N.Y. 1999) (defendant in drug case suffering from advanced HIV entitled to a downward departure from 48 to 18 months where family will suffer extraordinary financial and emotional harsh from his incarceration. “A sentence without a downward departure would contribute to the needless suffering of young, innocent children.”); U.S. v. DeRoover, 36 F. Supp. 2d 531, 532-33 (E.D.N.Y. 1999) (granting 12-level departure and 5-month prison sentence for single mother of five convicted of possession of about a kilogram of heroin based in large part upon the fact that elderly grandmother could not continue to care for the children and “[o]ne child suffers from ‘separation anxiety’ . . . . [and] has been under psychiatric observation” “The unique dependence of children on a defendant is a basis for a downward departure.”).
Posted by: Michael R. Levine | Jan 15, 2016 4:25:48 PM
SC- I get your point, guess I was thinking more along the lines of "intact, normal functioning, hard working families, parents that actually give a damn", sort of situation. In those cases, maybe a family impact statement could help sway a judge to lessen some of the ridiculously long sentences being doled out.
I do have to disagree with you on one point, it's not just the worst of the worst who are ending up in prison these days. Our prisons contain alot of people who have made mistakes, not worst of the worst mistakes, just one time bad judgement mistakes that anyone could make. You can come from a good home, have a good education, be an upstanding person and one mistake can ruin your life as well as that of your family. It happens everyday. Too many being locked up with little chance for redemption in society when they get out.
Posted by: kat | Jan 15, 2016 4:51:22 PM
Michael R. Levine
I didn't say that family circumstances couldn't be considered. I said that minimizing family impact was not a purpose of sentencing.
I don't know if you are pretending not to understand the structure of 18 USC 3553(a) because you have a bias, or what.
3553(a)(1), (3), (4) and (5) set forth what should be considered.
3553(a) (2), (6) and (7) set forth the expected goals/results of sentencing.
Further, you will not find anything in Booker that says that a goal or purpose of sentencing is to minimize impact on the defendant's family. You know the difference between a factor to consider and a goal to achieve, right?
You are confused and imprecise. This kind of intellectual sloppiness is what is killing the Court system.
Posted by: USPO | Jan 15, 2016 6:50:16 PM
Kat. I want the lawyer hierarchy dead. Then I want the violent super predators they are protecting, privileging and empowering them dead. That is a hit on 20,000 lawyers, followed by the execution of 10,000 people a year.
Right now, all these lawyers, on disgusting display here, have sided with the murders of 16,000 victims a year. They swim in a sewer totally oblivious to the air and land above. Do not dive in there with them.
Posted by: Supremacy Claus | Jan 15, 2016 11:11:31 PM
S.C. , you write "Kat. I want the lawyer hierarchy dead." I think you need intensive psychotherapy and counseling. I wish you a speedy recovery.
Posted by: Emily | Jan 16, 2016 10:44:56 AM
Emily. Did you find a KGB handbook in the trash? Because they called dissenters insane and committed them to involuntary psychiatric treatment. I think you need to reveal the fraction of your income or that of your employer coming from government. That would make you an evil rent seeker favoring criminals.
Posted by: Supremacy Claus | Jan 17, 2016 12:39:52 AM
USPO writes "This kind of intellectual sloppiness is what is killing the Court system." What "killing the court system" are probation officers who out prosecute the prosecutors,
Posted by: Dave from Texas | Jan 17, 2016 12:46:02 AM
Dave from Texas
Hi! Texas born here. You are right that many POs have a prosecutorial bent. I work in the largest federal judicial district in the country, where we take independence from the U.S. Attorney's Office seriously. This is why we recommend downward variances often. I personally have never recommended an upward variance. I battle far more with the Government than with the defense bar and have regularly caused the Court to reject stipulated offense level increases by showing the Government could not adequately prove them. Prosecutors are every bit as sloppy as defense counsel. So are judges and some of my fellow POs.
Don't mistake my focus on accuracy and precision for bias. That's dumb. Accuracy and precision are the enemy of bias.
Posted by: USPO | Jan 17, 2016 11:50:16 AM
