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July 24, 2020

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 at 11:25 AM | Permalink


I am a prosecutor who has handled many of these types of cases, which are always the most difficult kind to handle, but I can tell you that in my experience the victims on these cases have a pain that the courts can never make better, which they often know, but they are also firmly unconvinced by utilitarian arguments as to the cost of the litigation. I think a restorative justice approach, which I have seen happen in a similar case, would without question be worth approaching, however I do think restorative justice is much more effective when the litigation is not prolonged and that is the defense attorney’s approach from the beginning. Restorative justice has two major prongs: acceptance of responsibility by accused, and forgiveness by the aggrieved, and the likelihood of the latter becomes more difficult to attain the longer the former delays.

Posted by: Stan Overby | Jul 24, 2020 11:48:04 AM

Astute comments, Stan, and I feel for everyone involved in this case who likely knows that it only gets harder and uglier the longer it drags on. And given that both parties appealed the most-recent, five-year sentence, it seems a near given that the next sentence will also get appealed.... and so it goes

Posted by: Doug B. | Jul 24, 2020 1:33:30 PM

If sentencing is hard, resentencing is even harder. Having to recontact the victims and tell them that an old case is now reopened just brings any pain that they suffered back to the surface.

In my office, I drew the short straw on some very old juvenile resentencings under my state's take on the Miller line of cases. The victims who thought they had at least another decade before the defendants might get released were very unhappy.

Since my state has jury sentencing (and requires the finding that the maximum sentence is appropriate under Miller to be made by the jury), none of the defendants wanted to be the test case on what numbers a jury might give under the appropriate instructions, especially a jury that would probably only get the cold transcript and be told that the defendant had already been found guilty. And since most of the defendants had not been preparing for being released any time soon, there was the question of how to handle the transition back into the community. Ultimately, the compromise was a sentence of approximately 5-10 years over time served so that they would be immediately eligible for parole but the Parole Board could insist on an adequate home plan first and have some supervision during the transition period. It was something that -- at least -- the lawyers could live with (and convince their clients to take), but it was not an optimal solution.

And the type of issues that both sides have to consider are the epitome of the problem with resentencings -- how do you account for behavior since the original trial/plea and what weight do you give to expectations created by the original sentence (even if that sentence was improper).

Posted by: tmm | Jul 24, 2020 4:43:15 PM


I actually think that’s a common theme even for first time sentences when you are dealing with cases like Felony DUI/DWI. How do you balance the deterrence vs. recidivism? Recidivism in these cases is kind of a moving target (a drunk driver is likely to do it frequently before caught, but obviously once the worst happens it is much less likely) but there is an understandable goal to promote deterrence, especially because this is a crime that crosses socioeconomic lines, and is often committed by people with no history of criminal activity at all. I would interested in any additional research on this point tbh.

Posted by: Stan Overby | Jul 24, 2020 5:26:54 PM

Here in Kentucky, only 4th offense DUI is a felony (unlike many states where it becomes a felony upon the 3rd offense). My observation over time is that about 95% of all drivers will never have a DUI. About 2% will have 1 DUI in their life -- they made a mistake driving home from a bar or party, when they should have called Uber. No matter what the Courts do with these people, they rarely ever get a 2nd DUI. Then there is that last 3% of drivers who on average have 3 to 5 DUIs each. Those people are chronic alcoholics, and they will keep coming back until they get effective treatment for alcoholism. The public fails to know or understand that about 3% of drivers account for about 85% of all DUIs. Their need for rehab and treatment must be balanced against punishment and retribution, where they have killed another person while driving drunk. Here in Lexington, about 2 years ago, we has a 26 year old woman who had only had her Driver's License restored from a prior DUI when she killed two pedestrians (one a popular Louisville police detective, who was in town for a police convention) -- she was sentenced to 26 years in prison. One of the grimmest cases I recall was from Michigan. In 1991, the female drunk driver had killed another driver and was sentenced to just 1 year in prison (this was in the days before MADD got involved). 18 years later, in 2009 that same woman killed a second driver while driving drunk and she was sentenced to 14 years in prison (which I don't think was long enough). Finally, about 25 years ago when I practiced law in Atlanta, the "Constitution and Journal newspaper ran a 3 full pages article in their Sunday edition about every driver in Georgia who had more than 10 DUIs (between 300 and 400 people, as I recall)! Except for 1 man, those numbers ended at 15 DUIs. The last man had 23 DUIs, had just finished serving 5 years in state prison for his 23rd DUI, and HE HAD A VALID GEORGIA DRIVER'S LICENSE! At that time, the maximum time for suspending a Driver's License was 5 years, the length of his prison sentence, so when he got out, he was immediately eligible to get a new license. After the public outcry resulting from the AJC article, the Georgia Legislature promptly changed that law, and provided for lifetime revocation. But that doesn't solve the problem, as drunks regularly continue to drive drunk, whether they have a valid license or not. Ultimately, society has to work harder on getting effective treatment for alcoholics, while simultaneously punishing people who kill while driving drunk, to achieve punishment, retribution and deterrence. Under our criminal system, these determinations should be made by the jury, not by a Judge. I liked the way a Lexington jury punished a 3rd offense DUI case (no injuries or fatalities) I worked on thru trial. Under Ky. law, 3rd offense DUI is punishbable by 60 days to 1 year in jail and a fine up to $1,000. The jury recommended and the Judge imposed 60 days in jail (the shortest possible time), but then also imposed the maximum fine, $1,000. The ultimate problem is that even A.A. has only about a 26% success rate (1 year or longer of sobriety) with alcoholics, so these problems have no ready solutions. One psychiatrist I know suggests requiring Vivitrol shots monthly (which block the receptors in the brain for alcohol), but that medication is very expensive and is not effective with everyone.

Posted by: James J. Gormley | Jul 25, 2020 10:45:56 AM

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