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April 14, 2016

Could and should past concussions be a significant mitigator at federal sentencing of white-collar offender?

Books1002defordThe question in the title of this post is prompted by this interesting local article about a high-profile federal sentencing that has been postponed so that the defendant can participate in a study of the long-term symptoms of traumatic brain injury.  The headline of this story is "Ex-Cleveland Brown Reggie Rucker says concussions possibly caused him to steal from nonprofits," and here are the interesting details:

Former Cleveland Browns wide receiver Reggie Rucker indicated Wednesday that he will rely on concussions that he suffered as a football player as a possible explanation for embezzling money from his non-violence groups when a judge sentences him later this year.

Rucker, 68, of Warrensville Heights is participating in a study at the National Institute of Health that is examining the long-term symptoms of traumatic brain injury — something that many current and former NFL players say they suffer from as a result of concussions.

His attorneys asked U.S. District Judge Dan Polster to delay his May 23 sentencing because Rucker has another test to undergo in June.  That test that could prove useful in explaining why Rucker stole about $100,000 from the Cleveland Peacemakers Alliance and other nonprofits, attorney Jack Sammon said at a hearing Wednesday. Over objections from the U.S. Attorney's Office, Polster postponed Rucker's sentencing date until July 14.

"I want to have as much information about Mr. Rucker as I can reasonably get," the judge said.

Rucker pleaded guilty in February to wire fraud and making false statements to the FBI. Prosecutors said Rucker cut thousands of dollars in checks from his nonprofits and withdrew cash from ATMs at casinos across the country.  His actions often placed his agencies in the red leaving many of his outreach worker without paychecks.

Rucker used the money to pay personal expenses, including gambling debts and his mortgage, all while making passionate pleas to the public and government agencies for money for his philanthropic endeavors, prosecutors said.

Michael Hennenberg, an attorney representing Rucker, said the former Browns player suffered seven or eight concussions that he knows of during his 13-year career. Three of those came as a result of blows that knocked him unconscious, the attorney said.

Such injuries are known to cause impulsiveness and compulsiveness, both of which may play into Rucker's crimes, Hennenberg said. "Reggie Rucker is the first person in the country to be examined to determine the full implications of his now-known significant brain injuries," Hennenberg said.

Assistant U.S. Attorney Adam Hollingsworth objected to postponing the sentencing, in part because Rucker has already submitted past medical records that point to possible brain injuries. He also noted that doctors have said a definitive traumatic brain injury diagnosis is not possible until a person dies and an autopsy is performed....

Under a plea agreement he reached with prosecutors, Rucker faces a prison sentence of between 21 and 27 months. He enrolled in the Ohio Casino Control Commission's lifetime irrevocable exclusion program in March, meaning he can no longer legally gamble at casinos in the state. "Mr. Rucker's actions to defraud charitable organizations and line his pockets were conscious decisions on his part, and he will be held accountable for those actions," Mike Tobin, a spokesman for the U.S. Attorney's Office, said in a statement Wednesday.

The guilty plea cemented a fall from grace for Rucker, a beloved football player who made a name for himself by heading organizations that encourage non-violent responses to disputes between Cleveland residents.

Despite the brain injury discussions, Hennenberg stressed that Rucker has accepted responsibility for his actions. He released a document the former football player gave to the U.S. Probation Office on Friday that will be used when the office makes its sentencing recommendation. "I have learned and continue to learn many valuable life lessons as a result of my wrongful conduct that brought me into the criminal justice system," Rucker's written statement reads.

April 14, 2016 at 11:30 AM | Permalink


Traumatic brain injury is almost universal among high risk inmates and is very greatly elevated among inmates in general. See, e.g., http://washparkprophet.blogspot.com/2015/03/traumatic-brain-injury-almost-universal.html

How to respond to crimes committed by individuals with TBI is another question. TBI is one of a great many serious mental health conditions that is for all intents and purposes incurable and people who have committed crimes and have TBI generally pose an elevated risk of recidivism and misconduct while serving a sentence.

If one wants to protect the public it is not enough to understand a key root cause of crime. It is also necessary to come up with a credible alternative that protects the public, even if it has less of a moral condemnation aspect to it than a conventional criminal conviction.

Posted by: ohwilleke | Apr 14, 2016 11:39:38 AM

At his sentencing a few years ago, former U.S. District Judge Jack Camp (Northern District of Georgia) received consideration of the issue of whether he had had a traumatic brain injury from a bicycle accident a few years before he backed up his stripper girl friend with two firearms (for which he was not prosecuted, since using or carrying a firearm in connection with a drug crime carries a mandatory consecutive sentence) while she bought drugs with money he gave her. One of the counts Judge Camp pleaded guilty to was giving his girl friend his Federally-issued laptop computer!

Posted by: Jim Gormley | Apr 14, 2016 11:40:20 AM

One of the issues for courts going forward is going to be "speculative" traumatic brain injury. Some aspects of TBI will be documented in a defendant's medical records. For other aspects -- e.g., chronic traumatic encephalopathy -- there is no current diagnostic tool and the most that experts can say is that the defendant engaged in activities that create a risk of TBI and that the defendant displays some behavior associated with TBI. Whether this type of evidence is sufficiently definite to get past the admissibility threshold and what weight it should get even if admitted are still very open questions that have only been addressed in a handful of cases.

Posted by: TMM | Apr 14, 2016 3:51:07 PM

If it should, it shouldn't be limited to "white collar" offenses. When you really think about it, "white collar" offenders are among the most craven in the whole system given that they typically aren't crippled by economics or drugs or both and have opportunities to overcome that most defendants do not.

Posted by: Fat Bastard | Apr 14, 2016 7:28:33 PM

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