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January 31, 2023
Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered
The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography. The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms. The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence." I recommended the lengthy article in full and here are excerpts:
The crime that Jared Stephens committed is not in dispute. The question is whether he should die in prison for it.
On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater. He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.
Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared. He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report. He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.
That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail. The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing. It was also dozens of times greater than the typical sentence for possession of child pornography....
Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind. He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers. Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...
Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.” That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.
Instead, he chose to fight the case. State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.
Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections. Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team. Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term. The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.
January 31, 2023 at 11:20 AM | Permalink
Comments
Also from the article: a quote from my former colleague, assistant public defender Adam Saper:
In a more than 900-page motion to “correct” Stephens’ sentence, his lawyers do not claim racial bias affected Diaz’s decision. Still, Adam Saper, one of the public defenders who represented Stephens at trial, said he thought race played a role. “I think what the judge saw was a young, mentally ill Black man in handcuffs and an orange jumpsuit with no family and friends,” Saper told the Herald in an interview. “Let’s throw him away because we are so afraid of mental illness that we would rather just bury him in the corner of society until he dies rather than trying to get him some help.”
Impressed with Saper speaking truth to power!
Posted by: Anonymous | Jan 31, 2023 12:11:42 PM
This is a case in which one of those 40-year probation terms after incarceration, derided a few posts ago in a drug case, may have been appropriate.
Posted by: Jason | Jan 31, 2023 1:53:34 PM
Of course we can all agree with "Anonymous" in his anti-Hispanic and sexist criticism of Judge Veronica Diaz, and with his conclusion that there's nothing wrong with repeatedly sexually abusing (and terrorizing) little children so you can take photos of them during their degradation and pain.
Still, one might think there's something wrong with people who turn down a sweet deal, particularly when it's absolutely clear that the defendant is ice-cold on the evidence and going to lose big time at trial.
As ever with the defense bar, it's always somebody else's fault, particularly with one of their favorite scenarios, child abuse.
P.S. Schizophrenia does lots of bad things, but making you think that a four year-old is sexy is not one of them.
Posted by: Bill Otis | Jan 31, 2023 1:57:30 PM
Bill, what exactly was "anti-Hispanic and sexist" about what Anonymous said? I did not see any mention of Judge Diaz's race or gender. Is any criticism of a female judge's decision-making inherently "sexist"?
Also, how exactly does expressing respect for someone expressing concern about the factors that led to the imposition of a 150-year prison term for downloading child porn constitute a "CONCLUSION that there's nothing wrong with repeatedly sexually abusing (and terrorizing) little children so you can take photos of them during their degradation and pain"?
Posted by: Doug B | Jan 31, 2023 2:20:09 PM
Doug --
"Is any criticism of a female judge's decision-making inherently "sexist"?"
It sure seems to be when a conservative makes it. Welcome to the "sauce for the goose" department. Not my favorite precinct, but if that's how it goes...............
As to your second paragraph, "Anonymous" (you might want to ask yourself why so many of these people want to stay hidden) gushes about the True Wonderfulness of an ex-APD who lambastes the system but has not a single word of criticism about how the defendant GOT INTO THE SYSTEM.
The answer here is not to bash the female, Hispanic judge. The answer is (1) for the defendant to refrain from loading up on kiddie porn, and (2) if he must load up on it anyway (a real prince, there), to take the sweet deal the prosecutors offered him rather than to try some dishonest fancy dance the jury is certain to reject. When the rejection then happens, he made his own bed.
That's the real story about what happened in this case, not Judge Diaz.
Posted by: Bill Otis | Jan 31, 2023 2:38:03 PM
Two comments thus far have criticized the defendant for not taking the "sweet deal." As if his poor decision making excuses the judge's decision to sentence him to 150 years in prison. The article makes clear that the defendant is profoundly mentally ill. My experience in the criminal legal system has been that defendants are often deemed "competent" to stand trial, even if they do not truly understand what is happening around them. The uncomfortable truth is that a severely mentally ill man was put on trial while not understanding the process, and then sentenced to die in prison. This is even more shocking when we see that he was in college at one point, and then his life shifted due to mental health. Who amongst us can say that such tragedy will not strike us or a loved one? Who can say that this young man's life should be thrown away?
Posted by: Anonymous | Jan 31, 2023 3:24:59 PM
Bill,
What you said is so over the top and disingenuous I don't even know where to begin. You keep knocking down straw man, after straw man, after straw man.
1) Why is "Anonymous"'s criticism of Judge Diaz anti-Hispanic or sexist? It would be racist and sexist to hold a Latina to any different higher or lower standard as to when criticism is warranted. And whether or not race played any role is this sentence is certainly debatable. But there is no group that is categorically immune to possible cognitive racial bias more than any other group, and it is bigoted and sexist to suggest otherwise.
2)As you are fully aware, no one (other than perhaps the defendant) has argued there is "nothing" wrong with the defendant's conduct here. The question is simply what the sentence should be.
3)The linked article makes clear that the defendant's crime was possession, not production or distribution. So assuming someone "repeatedly sexually abus[ed] (and terroriz[ed]) little children" to "take photos of them during their degradation and pain", which the article implies happened in this case (though for all we know the ASAG's comments are about child SAM in general, and this case consisted of illegal possession of selfies of 17 1/2 year olds), the monster who destroyed these kids lives is not the person at issue here. Instead the concern is that allowing the possession of these images to go undeterred will incentivize more of them to be produced, in addition to the harm created in the victims' minds every time the state has to let them know that yet another person watched their abuse for personal gratification. Which leads to—
4) No one is saying it's "somebody else's fault" as to the extent of the harm the defendant did. But a life sentence for marginally adding to the market for more child sex abuse, and marginally adding to the pain and suffering and anguish of victims for acts committed long ago is insane.
5)I'll assume you're correct that there is no correlation between the mental illness of schizophrenia and the mental illness of finding four-year olds sexy (again, assuming that's what these images consisted of). But what of it? It's a mental illness nonetheless, and former long-time commenter Supremacy Clause has even linked studies that claim that viewing CP for some of those mentally ill people reduces the risk that they will go out and harm more children. Obviously Congress and state governments have decided that is still worth it to criminalize possession, with harsh sentences to bat, but that shouldn't dictate that a harsh sentence is the appropriate one in every single case, particularly for a schizophrenic whose a) distortion of reality made him unlikely to fully understand the effects of the trial penalty and b) more generally probably is correlated with a much lower level of self control—which means if he also has the mental illness of attraction to little girls, it will be more difficult for him to resist the urge to go to dark corners of the internet and download CSAM.
6) In case there was any doubt about defendant's mental illness causing lack of self control, his horrifying conduct that occurred in the store where he boasted of and showed off his crimes is proof in the pudding.
7) I don't know what the appropriate sentence should be in this case. But one thing I'm sure of is that there are many prosecutors out there who've, exhibiting tunnel vision along the lines of what your wrote here, destroyed people's live far, far, more than the defendant did in this case or is likely to ever do in the future. Not to mention Judge Diaz if the sentence is allowed to stand.
Posted by: Poirot | Jan 31, 2023 3:25:58 PM
Bill, your response to my question about sexism seems to essentially be: "Other people make misguided and inappropriate claims of sexism, so I will, too." Got it.
Posted by: Doug B | Jan 31, 2023 4:17:25 PM
Doug --
Actually, you come close to getting it. Dozens and dozens of times, my positions been misstated, mangled, inverted, re-cast and flat-out lied about. I have asked again and again for this to stop. It hasn't and it's now clear it's not going to.
Since those are the rules of the game, I get to play by them too. And will.
Don't like it? Change the rules and enforce the changes against all comers.
Posted by: Bill Otis | Jan 31, 2023 6:00:05 PM
Or, since rule enforcement is notoriously challenging (and time-consuming) in online spaces and speech codes are particularly nettlesome, I can be content to sincerely hope that people of good will generally will make efforts to try to use this comment space responsibly and respectfully. But if you want to use the space to make claims of racism and sexism, I am not going to stop you. And I fully understand your grumpiness if others make this space feel hostile to you or if you perceive a structural bias in my laissez faire approach.
Posted by: Doug B. | Jan 31, 2023 6:16:49 PM
If anything, this is a mental illness and crime story, not “trial penalty.”
If a completely sane person fights a three year sentence when caught with the goods, he deserves it.
Posted by: TarlsQtr | Jan 31, 2023 10:05:48 PM
Poirot,
1. 1) Why is "Anonymous"'s criticism of Judge Diaz anti-Hispanic or sexist? It would be racist and sexist to hold a Latina to any different higher or lower standard as to when criticism is warranted. And whether or not race played any role is this sentence is certainly debatable. But there is no group that is categorically immune to possible cognitive racial bias more than any other group, and it is bigoted and sexist to suggest otherwise.“
And there is the problem. Every word is correct. However, that attitude never exists when the warranted criticism is given to KBJ, Hillary, Kamala, etc. Criticizing them is sexist/racist, but calling Clarence Thomas “Uncle Tom,” Ben Carson “Not really black,” or a black Republican an “Oreo,” is AOK. Hell, we just learned that black cops are “white supremacists.”
3. I’m not willing to spend my time discerning much of a difference between making, possessing, or distributing. They are all part of a cycle that ruins kids.
4. Of course you are saying it is someone else’s fault. At, least not his fault. If Schizophrenia was not the excuse, another would be found. He was abused as a kid, someone else put the porn on his computer, etc.
5. Why in the world would you bring up a study about watching child porn making freaks less likely to create it? Well, if that’s true, give it to them! SMH
Posted by: TarlsQtr | Jan 31, 2023 10:31:00 PM
Mr. Otis:
"... if he must load up on it anyway (a real prince, there), to take the sweet deal the prosecutors offered him rather than to try some dishonest fancy dance the jury is certain to reject."
So you believe that 3 years is a reasonable sentence for possession, and an additional 147 years is a reasonable sentence for demanding one's right to a trial? If there's a criminal penalty for exercising a right, it isn't a right. And he wasn't necessarily being dishonest, as he's obviously not in his right mind.
"When the rejection then happens, he made his own bed."
Again, he's not in his right mind. If you run over a pedestrian because you have a heart attack while driving a car, are you guilty of murder? Is mental illness really any different from a physical illness, morally?
Posted by: Keith Lynch | Jan 31, 2023 11:34:52 PM
Keith Lynch,
You say, “obviously.” Isn’t the threshold that he didn’t know what he did was wrong? That’s not obvious at all.
Posted by: TarlsQtr | Jan 31, 2023 11:55:09 PM
TarlsQrr: He was showing off his child porn in a Best Buy, even making sure a security camera had a good view. So obviously he didn't realize that it was incriminating.
As a separate issue, it doesn't seem that he was capable of understanding or meaningfully participating in his trial. As such, he should have been found incompetent to stand trial.
Like a driver who accidentally kills due to a heart attack, or like a patient in diabetic crisis who is thrown in a drunk tank, he needs treatment, not punishment.
Mental illness, like physical illness, can happen to anyone.
Posted by: Keith Lynch | Feb 1, 2023 7:51:06 AM
Tarls, I am curious about this statement: "If a completely sane person fights a three year sentence when caught with the goods, he deserves it."
Are you asserting that a decision by a "completely sane person" to exercise her constitutional right to require prosecutors prove her guilt to a jury BRD, then she "deserves" an additional 147 years in prison?
Posted by: Doug B | Feb 1, 2023 8:44:44 AM
Many schizophrenics end up with various kinds of criminal charges, where the facts are bizarre and irrational. I have worked on the case of a Schizophrenic 21-year old college student, who burglarized 6 apartments in the same complex where he lived, and stole items of no value to him, including shoes and an ROTC uniform that were far too small for him to wear. He also ran his fingers from the ankle up the thigh of a naked coed sleeping in an apartment, leading to a charge of sexual abuse. We got our client evaluated by a senior psychiatrist who has written a 1,200 page text on Schizophrenia. He told us that our client had the best case for a defense of "Not Guilty by Reason of Mental Disease or Defect" (Kentucky's name for an insanity defense). Our defendant had had a normal childhood, but then had an adult onset of Schizophrenia, such that he never made it thru basic training in the Air Force, which he joined after high school graduation. He spent 2-3 months in an Air Force psych hospital before receiving the gift of a General Discharge (which qualified him for free V. A. medical care for the rest of his life. Between the time he joined the Air Force and the time he was arrested in Lexington, his I.Q. had dropped by 14 points (Two I.Q. tests given 4 years apart were compared). I learned from our expert psychiatrist witness that schizophrenia is the only mental illness that destroys the intellect over time. Other mental illnesses, such as bi-polar disorder, cause the patient to engage in unusual and bizarre behaviors, but they don't destroy his intellect -- his or her I.Q. remains about the same. Schizophrenia also causes cognitive impairment. See, Vol. 8 Frontiers In Psychistry, p. 293 (2017) -- "A Brief Assessment of Intelligence Decline in Schizophrenia As Represented by the Difference Between Current and Premorbid Intellectual Quotient", at nchi.nim.nih.gov/pmc/articles/ PMC5743746/. Many attorneys and judges are unaware of the effects that schizophrenia has on cognitive functioning and intellect. I wonder whether defense counsel ever requested or the trial court ever held a competency evaluation and hearing for this defendant? There would be two levels of analysis: first, can this defendant legally be held responsible for his criminal conduct, and second, can he rationally work with his lawyers and assist in his own defense? Only psychiatrists could make those determinations. On its face, there appear to be things profoundly wrong with how this case was handled by the Court and by defense counsel (habeas corpus motion, based upon ineffective assistance of counsel?). I suspect we will hear more in the press about this unusual case in the future.
Posted by: Jim Gormley | Feb 1, 2023 8:50:28 AM
Jim Gormley: I agree regarding most of your post, but disagree about the defense counsel. The attorneys tried everything re competency, etc. At the end of the day, the judge makes a competency determination, and she found him to be competent to proceed, despite his obvious mental illness. Both the judge and the prosecutors moved forward in this case, and defense counsel did everything possible to stop it.
Posted by: Anonymous | Feb 1, 2023 11:04:13 AM
Keith Lynch,
Then why did he choose to show the porn. If he did not know it was wrong, he could have just as easily shown his tax returns or his high score in minesweeper.
It would be a huge coincidence that of all the things contained on a computer, it was the porn he brought up.
If he chose to bring it up, then he did so because he knew it was wrong.
Posted by: TarlsQtr | Feb 1, 2023 11:38:54 AM
Douglas,
First off, if gender is unknown it is customary to use “he.” It’s good to know that “The” Ohio State University engages in that woke BS. Another place I can tell my kid not to go. I get it though. The admin and students with too much time on their hands are watching. “Big bro…”er, I mean “Big sister” lives.
I believe we all have choices to make in life. First, don’t download the child porn. Second, you are using a faulty premise that it is a “trial penalty,” when it is really a “plea gift.” Finally, it is your choice to accept the gift, or not.
Posted by: TarlsQtr | Feb 1, 2023 11:50:31 AM
Douglas,
First off, if gender is unknown it is customary to use “he.” It’s good to know that “The” Ohio State University engages in that woke BS. Another place I can tell my kid not to go. I get it though. The admin and students with too much time on their hands are watching. “Big bro…”er, I mean “Big sister” lives.
I believe we all have choices to make in life. First, don’t download the child porn. Second, you are using a faulty premise that it is a “trial penalty,” when it is really a “plea gift.” Finally, it is your choice to accept the gift, or not.
Posted by: TarlsQtr | Feb 1, 2023 11:50:32 AM
Tarls is a tough customer . . . .
Posted by: federalist | Feb 1, 2023 12:00:17 PM
I have a local friend whose very bright and well-educated (he is a graduate of elite private schools and a top 20 University), 30-something year old son moved to Austin, Texas, where his schizophrenia presented in a way that would terrify any parent. He shot and killed his next-door neighbor in the apartment complex where he lived, and also shot and wounded two women he knew not at all in the parking lot. The week before this incident, the son was a patient in a Kentucky psych hospital, but the psychiatrists determined to release him, over the parents' objections and begging. Initially, the son was found by both the state's psychiatrist and the defendant's private psychiatrist to be unfit to stand trial, because he was so psychotic. After 6 month's of medication, he was found competent to assist in his own defense and to stand trial. The parents hired both a diagnostic psychiatrist and a forensic psychiatrist, who agreed with the state's doctor that the young man is paranoid schizophrenic, and was not mentally culpable for his shooting conduct. Texas consented to a plea of "NOT GUILTY BY REASON OF INSANITY", and the young man is now a patient in a Texas state hospital for the criminally insane, where he will remain for a period of years, where he will remain until he can establish that he is no longer a danger to himself or anyone else in the community. It was the best possible outcome, but remains very sad, all around. His parents spent more than $250,000 on attorneys and expert psychiatrists. Mental illness is a scourge that doesn't fit naatly into criminal law.
Posted by: Jim Gormley | Feb 1, 2023 12:31:41 PM
Tarls, the last case I worked on closely involving serious complaints of a "trial penalty" involved a woman, Daniela Gozes-Wagner, a single mother and midlevel manager in Houston, who was sentenced to 20 years in prison for being part of health-care fraud/money laundering after trial. Her co-conspirators and superiors who developed and directed the fraud were given a "plea gift" of 6-year and 5-year sentences. I was thinking of Daniela as the "completely sane person" you mention. Notably, President Trump apparently did not think she "deserved" 20 years, as he commuted her sentence: https://www.justice.gov/pardon/page/file/1349131/download
Indeed, if you look just at Prez Trump's commutation record, you see a disproportionate number of women who had received disproportionately long sentences after exercising their trial rights -- eg, Alice Marie Johnson, Judith Negron, Crystal Munoz, Tynice Nichole Hall were all part of Trump's relatively few (pre-election) commutations. In short, women were 40% of his pre-election commutations, though they make up less than 7% of the total federal prison population.
My use of the term "she," in other words, was not about "woke BS," but rather part of my effort to accurately reflect my experience and the data suggesting that a disproportionate number of folks who get slammed at sentencing after exercising their rights to trial are women. That you seemingly were eager to turn a reflection of reality into a culture-war complaint is perhaps a useful reminder of what really drives and influences your thinking.
Finally, Tarls, you did not answer my question, so I will ask it again: "Are you asserting that a decision by a 'completely sane person' to exercise her constitutional right to require prosecutors prove her guilt to a jury BRD, then she 'deserves' an additional 147 years in prison?" It is certainly true that "we all have choices to make in life." But I was not asking you about life. I was asking you about your claims about "deserving" a 150-year sentence and specifically whether you think a person "deserves" an additional 147 years in prison for exercising the right to trial.
If you do not want to answer that question or think it not a fair question, that's fine. But even if you think all plea offers are "gifts," there is still a fundamental question of what an individual "deserves" -- -and how government power should function --- when someone turns down a "gift" simply by exercising constitutional rights.
Posted by: Doug B | Feb 1, 2023 12:57:47 PM
Douglas,
Mentioning Trump holds no weight with me. I’ve never been a supporter, so his record will not change my mind in either direction. In fact, my biggest issue with him as POTUS, other than being a bellend, is in the area of criminal justice. Hell, even if I did like Trump, it wouldn’t make a difference.
Your nonsense aside, it is customary to refer to non-specific people as “he,” although I’m sure your OSU style guide says otherwise. You are employing the “face tattoo” trick. You get a face tattoo, someone notices, and you get angry that the person noticed. I don’t believe for a minute that you were thinking of plea gifts and the percentage of women. It doesn’t matter, but I just don’t.
I thought my answer could be easily extrapolated with my previous answer, but I guess I was wrong. My apologies.
I believe that prosecutors have a right to seek, and judges have a right to give, any punishment consistent with law. If a prosecutor is generous enough to offer a plea gift, that’s his discretion. It’s then in the defendant’s hands.
Posted by: TarlsQtr | Feb 1, 2023 2:36:55 PM
Federalist,
Thank you? I think? 😆
Posted by: TarlsQtr | Feb 1, 2023 2:42:05 PM
I am not at all angry, Tarls, that you apparently have such a big problem with my use of the pronoun "she" to reference your "completely sane person" who exercises her trial rights (though I suppose I am grateful you did not call me "sexist" for doing so). I merely wanted to explain why I opted to use that pronoun in this context. It also served to make sure you and others were clear that I was not referencing the male defendant in the story from Florida (which was a bit vague in your use of "he" in your comment). Also I trust you know my use of "she" does not come from any "OSU style guide." I am not aware of any such "guide" for OSU faculty, though it seems you think it important that I follow the "Tarls style guide" at the risk of being branded "woke" for failing to do so.
Trying to stay on topic, you still have not directly answered my question about what you think a defendant "deserves." You have now prattled on about "woke BS" and the "face tattoo trick," but you still have not spoken directly to what I asked. Saying what judges and prosecutors have a legal "right" to do is obviously not the same as saying that someone "deserves" 147 years of incarceration. That choice of words --- and the reference to (retributuvist?) desert --- is what caught my attention and prompted my initial inquiry which you still have not directly addressed.
Maybe it will help, Tarls, if I use your preferred pronouns with a slight rewording of my query: "Tarls, legalities aside, if a sane defendant turns down a plea offer, is it your view he deserves a sentence 147 years longer (or whatever the absolute statutory maximum might be after prosecutors add any additional counts)?"
For someone seemingly concerned about "woke" issues, I hope you can understand why I worry about anyone claiming that an individual can "deserve" decades and decades of imprisonment for exercising a constitutional right. Perhaps you did not really mean to use the word "deserves" here, and so that is why I asked you to explain or clarify initially. (And in the future, I will try to use your preferred pronouns in any direct question to you.)
Posted by: Doug B | Feb 1, 2023 3:19:12 PM
federalist --
TarlsQtr is indeed a tough customer. Formerly worked in a prison, so he knows all their scams. Also a keen analyst, although his son already has him beat real bad.
Posted by: Bill Otis | Feb 1, 2023 3:40:32 PM
It’s not the “Tarls Style Guide.” It’s the one used in the English speaking world for centuries up until about five minutes ago.
I have said what they “deserve.” Whatever the judge decides to give the person within the parameters of the law.
“ Maybe it will help, Tarls, if I use your preferred pronouns with a slight rewording of my query: "Tarls, legalities aside, if a sane defendant turns down a plea offer, is it your view he deserves a sentence 147 years longer (or whatever the absolute statutory maximum might be after prosecutors add any additional counts)?"
Again, not my “preferred pronouns.” It is how the English speaking world has been writing for centuries.
I was not there and do not know the specifics. However, the prosecutor, judge, and jury do know them. If 147 years is the max and that is what the judge decreed, so be it. If the people of the jurisdiction disagree, they have the right to remove the prosecutor, judge, or whoever appointed them. Unlike Joe Biden’s latest nomination to the bench, I know what Article II is, what Article V is, and that voting is the ultimate weapon if you feel like injustices are being done.
BTW, your snarkiest at the end belies your claim of not being angry at all. You didn’t like your face tattoo being noticed.
Posted by: TarlsQtr | Feb 1, 2023 4:07:25 PM
Doug --
What sentence any given defendant "deserves" is a question so subjective that coming up with an answer that satisfies a consensus, particularly on a pro-defendant blog like this one, is very difficult. For the contingent that believes the whole system is corrupt and over-punitive and needs a "reckoning," you're going to get one sort of answer. For the contingent that believes mental illness is get-out-of-jail card most or all of the time, there will be a different answer. For the contingent that believes kiddie porn is "just looking at pictures," yet a third. And so on.
It seems to me that a more productive question is what sentence conforms to the law and (as you might say) respects the jury's verdict (that is, if multiple convictions count as jury findings to the same extent as multiple acquittals). The article makes no assertion that the sentence is illegal or inconsistent with the jury's verdict.
One other question is whether the sentence makes sense. I have previously taken the view that no sentence for a term of years over 75 years makes sense, because human lifespans are what they are. Anything beyond that is showboating.
It's worth noting that the real dispute underneath most of this is the defense bar's continuing refusal to accept the SCOTUS's 45 year-old holding in Bordenkircher. But I have seen no movement on the Court to overrule that case (correct me if I'm wrong). Given that, Bordenkircher is settled law, like the constitutionality of the DP, and that's that.
Finally, let's face facts. This defendant is going to be a ward of the state in one setting or another for the rest of his life. It makes some difference how confining his settings are, sure, but, to be honest, not that much. If it's not prison, it's going to be a secure mental hospital. So all the angst I see here would be better reserved for the child victims of pornographers, at least for those of us who are retrograde enough to consider child victims as something other than human garbage.
Posted by: Bill Otis | Feb 1, 2023 4:07:33 PM
Doug,
It literally took me two minutes to find the OSU Style Guide. https://www.osu.edu/assets/brand/ohiostate-editorialstyle.pdf
It’s under “nonsexist language.”:
“Do not use “he” as an all-inclusive pronoun.”
You are welcome.
Posted by: TarlsQtr | Feb 1, 2023 4:13:17 PM
Bill,
Wouldn’t the “showboating” lengthen the time until a person could be paroled, have “good time” reduce the sentence, etc.?
That would seem reasonable to me.
Posted by: TarlsQtr | Feb 1, 2023 4:20:28 PM
TarlsQtr --
We should do away with parole, and the Feds did, long ago. But in the end, neither the length of the sentence nor any other safeguard is going to work if the pro-criminal forces get the state legislature and the governor's office and thus are able to work all kinds of scam legislation to lower sentences, or just pardon willy-nilly -- because, after all, child rapists are wonderful and Amerika Stinks.
Posted by: Bill Otis | Feb 1, 2023 4:38:35 PM
Doug,
Let me be more direct as my point seems to whistle past.
Do I believe a sentence of 147 years for child porn possession could be deserved? Yes.
Do I believe all such cases should have that sentence? No. Theoretically, if someone could show another downloaded the porn and he/she/they/xi/xy/fe/fi/fo/fum didn’t know it, I believe such a sentence would be too harsh.
Posted by: TarlsQtr | Feb 1, 2023 4:40:46 PM
Tarls, I can't be angry at you because your comments are so amusing. First, on style guides, you cite the OSU COMMUNICATIONS style guide (which says it is following the style guides of the Associated Press and was updated Nov. 5, 2013). If you want to bemoan AP style guides or OSU communications following the AP a decade ago, have at it. But, at the very least, change your silly talking point about language being always "he" gendered "until about five minutes ago." (Note: I expressly said that I am not aware of any guide "for OSU faculty" because I feared you might be silly enough to look for a standard communication guide that every large institution uses in communications.) Your mixture of silliness and fatuousness here, Tarls, truly does make me chuckle --- as does accurately noting that you have preferred pronouns and are quick to whine when those are not being used.
On substance, it seems your definition of "deserves" is whatever the law permits a judge to give so that, in Tarls' lingo, every single defendant "deserves" the statutory maximum sentence. Fine, but I am pretty sure that is not how the English speaking world has been using that word for centuries. I will keep in mind that "deserves" = "within the parameters of the law" in the Tarls' vernacular, and I am glad I pressed you to express your meaning given that it is so out of keeping with how most people talk about what punishment a defendant "deserves."
And, Bill, I was not in any way asking for a consensus view of "deserves," I was asking for Tarls to explain if he really meant that 147 years of imprisonment was "deserved" for the decision to exercise the constitutional right to trial. He seems to keep saying "yes if that is what the law permits." Do you agree, Bill? Again, I am not seeking a consensus opinion: I am asking you, Bill, for your honest explanation of whether you think 147 years of imprisonment could be "deserved" for the decision to exercise the constitutional right to trial. Do you?
Posted by: Doug B | Feb 1, 2023 5:04:41 PM
Tarls, you are now conflating the issues, which is exactly why I tried to make my initial question clear with the "she" pronoun that freaked you out as much as a face tattoo.
I am NOT trying to inquire about what sentences you think are "deserved" for CP offenses (which is a very hard question for all sorts of reasons). I am trying to ask you whether you think someone could "deserve" decades and decades (and even 147 years) of imprisonment simply for decision to exercise the constitutional right to trial.
Your original statement spoke of when "a completely sane person fights a three year sentence" --- which I took to mean putting the government to its proof at trial --- then "he deserves it" [which I took to mean 150 years in prison]. I did not want to talk about the "he" in the press story -- I wanted to talk of other people in all sorts of other cases getting slammed for exercising their right to trial. So that's why I kept asking a question that I means to focus on that issue.
Maybe your rage over the fact that I did not use your preferred pronoun got us off-topic, but I am trying to understand your claim about "deservedness" as it relates to the exercise of the constitutional right to trial. I hope that is clear, but maybe there is no way we can get past the pronoun problems.
Posted by: Doug B. | Feb 1, 2023 5:14:26 PM
Are you really claiming that the “values” and practices expected of OSU faculty are not exemplified in the provided document? Risible. Note: That faculty are not held to the same standard as students or the communications department, or likely even a higher standard, is equally risible.
As far as the English being “he gendered,” I’d love to see how many examples you could come up with of “she” being used in the manner you do that is not of recent vintage. Just as it was always mankind, fireman, mailman, etc.
I apologize for noticing your face tattoo that you got because you wanted me to notice your face tattoo. You and your ilk have butchered the language, claim you haven’t, then get angry when people notice it.
And there is no conflation at all. If I say 147 years over the plea gift could be deserved (dependent on specific facts), then it should be clear it could be deserved in any case.
Posted by: TarlsQtr | Feb 1, 2023 5:49:40 PM
Three paragraphs highlighting again your rage over the fact that I did not use your preferred pronoun, Tarls, is not evidence that I am "angry" but suggests you are still seething that the AP updated its styles guides many years ago. And its is again funny to hear you complain about folks who "butchered the language" after you have redefined "deserves" to mean "within the parameters of the law."
Posted by: Doug B. | Feb 1, 2023 6:04:21 PM
Doug --
"I am not seeking a consensus opinion: I am asking you, Bill, for your honest explanation of whether you think 147 years of imprisonment could be "deserved" for the decision to exercise the constitutional right to trial. Do you?"
It would be foolish for a thoughtful person to say what sentence was deserved in a particular case without seeing the entire casefile, and I never did so when I was an AUSA. How old were the children? What was being done to them? Was it a bunch of snuff films? Were they being forced to have sex with animals? How severe is the defendant's alleged schizophrenia? What's his prognosis? What's his criminal record?
Beyond that, he is not being sentenced for the "exercise the constitutional right to trial." That's just flat-out false. He is being sentenced under the jury's verdict for HIS OWN REPEATED FELONIES. I mean, we should respect the jury's work, right? That's what you've said over and over. But we shouldn't respect it here? Why not? Because the jury came up with a conviction rather than an acquittal?
Stop trying to blame everyone else. It's become such a tiresome game. The defendant had two easy choices: (1) refrain from the behavior, which the huge majority of schizophrenics do; or (2) take the sweet deal he was offered. But he gave the finger to both those options, and now I'm supposed to get all worked up about it. The Supreme Court didn't in Bordenkircher, and I'll stand with the Court rather than with Mr. Wonderful here.
Finally, in a point you just walk right past, I noted this: This defendant is going to be a ward of the state in one setting or another for the rest of his life. It makes some difference how confining his settings are, sure, but, to be honest, not that much. If it's not prison, it's going to be a secure mental hospital. So all the angst I see here would be better reserved for the child victims of pornographers, at least for those of us who are retrograde enough to consider child victims as something other than human garbage.
Posted by: Bill Otis | Feb 1, 2023 6:18:17 PM
Methinks thou doest protest too much.
It’s fine, Doug. You’ve gone woke. Lots of people do it. I just get a kick out of your face tattoo and pointed it out. It’s not like it makes you automatically a bad person.
I redefined nothing. If a murderer lives in a LWOP state, he deserves LWOP. In many cases, he would morally deserve the DP, but it’s not “within the parameters of the law.”
I find that concept pretty simple.
Posted by: TarlsQtr | Feb 1, 2023 6:22:07 PM
Tarls: you suggested something that strikes me as quite foolish and arguably indefensible, namely that a defendant "deserves" a sentence 147 years longer for exercising the constitutional right to trial. I asked a follow up to see if that's really what you meant; you whined that I did not use your preferred pronoun in my follow-up question and persistently avoided discussing the key concepts at the heart of your foolish and arguably indefensible statement (whether extreme punishment is truly "deserved" simply when one "fights" the government's criminal allegation at trial). It’s not like it makes you automatically a bad person, but it does make you someone who says foolish and arguably indefensible things and then would rather focus on his preferred pronouns than try to defend or clarify what he said.
Bill: I am not trying to blame anyone for anything. Nor am I eager to discuss the fate of sad Mr. Stephens. I am seeking an understanding of Tarls' suggestion that a defendant "deserves" a sentence 147 years longer for exercising the constitutional right to trial. And, I agree that no defendant is being sentenced solely for exercising the constitutional right to trial. But that is why, from my view, it should be quite easy for you and Tarls (or anyone else) to answer my question in a straight-forward way -- namely by stating that nobody "deserves" a sentence 147 years longer for exercising his constitutional right to trial. Are you prepared to state that? Is Tarls?
Once we can all get on the same page that nobody "deserves" 100+ years in prison simply for exercising trial rights, we can then have a subsequent discussion of what sentence folks might think is/was "deserved" for Mr. Stephens or Ms. Gozes-Wagner or Ms. Alice Marie Johnson (or the many other "hes" and "shes" who have received long sentences after exercising their trial rights). But, so far, neither you nor Tarls have directly answered the basic question that I had after reading Tarls' initial "deserves" comment -- namely, do you think a defendant "deserves" a sentence 147 years longer for exercising the constitutional right to trial.
Can you (or Tarls) provide a direct answer that basic question?
Posted by: Doug B. | Feb 1, 2023 8:10:39 PM
Doug --
What the defendant deserves depends on his choices. He CHOSE to commit multiple felonies and got indicted for them. He then CHOSE to give the finger to the prosecutor's offer to kiss goodbye to a whole bunch of counts, thinking instead he could pull a fast one on the jury and arduously desiring to do so. But the jury saw through it and returned multiple verdicts of guilty. Since, as you have forcefully and repeatedly reminded us, the jury's work is entitled to respect, the court's sentence should embrace that respect. It did so, and that's why Mr. Wonderful got the sentence he did.
As the Supreme Court, through that right wing nut Potter Stewart, reminded us in the case you hate, Bordenkircher, what is "deserved" in this context does not depend solely on offense behavior. The concept of desert is (as the defense bar often loudly insists) a holistic one, embracing many things about the defendant's life and conduct. When desert is understood in that more comprehensive and nuanced way, the defendant made his own bed.
In addition, and now for the third time, all the outrage is misplaced regardless because THE DEFENDANT WAS GOING TO BE A WARD OF THE STATE FOR LIFE ANYWAY. It was going to be in the slammer or in a secure mental hospital that (again, according to the wails of the defense bar) is just like the slammer but under a more euphemistic name.
For those of (admittedly not in the defense bar) who think that oogling pictures of child sexual abuse isn't so cool, the sentence in this case is even less worth worrying about than what kind of pronouns we ought to use with transgender people.
Posted by: Bill Otis | Feb 1, 2023 9:38:27 PM
TarlsQtr --
You have to give Doug credit for consistency. As he has argued at great length, he wants sentencing courts to disregard acquitted conduct. In the present case, we see that he also wants sentencing courts to disregard CONVICTED conduct. Doug is nothing if not a steadfast friend of the defense! Now wonder his blog is so popular.
Posted by: Bill Otis | Feb 1, 2023 9:53:11 PM
Doug --
"[T]hat is why, from my view, it should be quite easy for you and Tarls (or anyone else) to answer my question in a straight-forward way -- namely by stating that nobody "deserves" a sentence 147 years longer for exercising his constitutional right to trial. Are you prepared to state that?"
I'll go you one better: Nobody deserves a sentence 10 minutes longer SIMPLY for exercising his constitutional right to trial. Indeed, I'll quote the Supreme Court, with which I fully agree (do you?): "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra at 397 U. S. 738 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra at 412 U. S. 32-33, n. 20. See United States v. Jackson, 390 U. S. 570. But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." That's from Bordenkircher.
Here, the defendant wasn't forced to a trial. He WANTED a trial. Fine. He got it. Then he got a bunch of verdicts that you want to effectively bury, so he can get the sweetheart sentence that, in his arrogance and belligerence, he turned down. But the court did exactly what you've so earnestly endorsed in other contexts -- respected ALL the jury's work.
Posted by: Bill Otis | Feb 1, 2023 10:33:13 PM
Doug,
If I wanted to discuss statements from you I considered “foolish and indefensible,” I could start my own blog to go over them. If I wanted to add comments from all those here who think like you, I’d have to hire staff.
You see? I can play the same game that doesn’t move the football at all. Now that we both think the other is foolish…
I noticed and made a comment regarding your usage of non-traditional pronouns. I also correctly hypothesized that it is a woke OSU thing. It is. I got a chuckle and you got angry. All is good. I apologize for triggering you. I was not a good guest on your blog. I’ll attempt to avoid such sensitive topics for you.
As far as the above case, again, you “foolishly and indefensibly” see it backwards. You see three years as the starting point and anything past that as a penalty. I see the 150 years as the starting point (the max for charged behavior) and a huge 147 year break for doing the right thing and admitting guilt.
I get it though. It’s difficult to escape the echo chamber and think outside the box you and your like minded colleagues find yourselves in.
Posted by: TarlsQtr | Feb 1, 2023 10:39:52 PM
Bill, I am glad with your last comment you focus on stating your own views on the simple question Tarls' initial "deserves" comment prompted rather than misrepresenting others' views. So we finally got an answer, namely that you think "Nobody deserves a sentence 10 minutes longer SIMPLY for exercising his constitutional right to trial." Great to hear, and this should not have taken so many posts to establish.
With that established, now we have the kind of question that federalist has been struggling with in the acquitted conduct setting --- namely how do we make sure prosecutors do not seek and judges do not impose longer sentences on defendants SIMPLY for exercising their constitutional right to trial. I do not have a ready answer here, but I am glad to have finally established that you agree with me that this is an important question (both constitutionally and as a matter of policy).
Posted by: Doug B. | Feb 1, 2023 10:43:52 PM
Bill, the blog is so popular because it’s an echo chamber, just like legal academia. They might disagree on the edges, but on the big topics it’s perfect three part harmony. If you asked 15 of his colleagues about the the topic of this post, the responses would all come back in chorus like they were written by a ChatGPI bot.
Posted by: TarlsQtr | Feb 1, 2023 10:51:00 PM
Tarls, I do not think you are foolish, but you made what I saw as a foolish statement that suggested "IF" someone turns down a sweet plea deal, then "he deserves" a max sentence of 150 years. I followed up by asking if you were really saying that simply the choice to go to trial was what made 100+ years in prison "deserved." You could have at that point said that what you really meant was that you consider the stat max "deserved" in every case. I find that a peculiar view of what an individual "deserves," but it does provide me with a better understanding of your curious statement. But you had to first whine about your preferred pronoun, and thereafter showed a confusion about the conversation and my question that reinforced the good sense of my pronoun choice.
It is especially funny after this conversation that you think this is a sensitive topic for me. I am not the one who started complaining about the failure to use preferred pronouns or concocted fairy tales about why someone else did not use those pronouns. But your sensitivity does not make you automatically a bad person, and I would still eagerly read your blog if you start one. And I would not complain if you don't use my preferred pronouns, as I try to be polite when a visitor.
Posted by: Doug B | Feb 1, 2023 11:18:20 PM
TarlsQtr: You say, "I have said what they 'deserve.' Whatever the judge decides to give the person within the parameters of the law."
Before Lawrence v. Texas (2003), Virginia had a law (18.2.361) making consensual oral sex, even in private with one's spouse, a felony with a sentence of up to five years in prison. So if a married couple committed this "crime" twice a week for 20 years, you think both of them deserve a sentence of more than ten thousand years in prison? Also note that in 1995 Virginia abolished parole, so ten thousand years means ten thousand years. Well, okay, about seven thousand years with time off for good behavior, so they might be released before the next ice age, especially if they agree to donate their organs to the state.
You also say, "Then why did he choose to show the porn. If he did not know it was wrong, he could have just as easily shown his tax returns or his high score in minesweeper." I don't follow your reasoning. Neither do I follow his, since he's crazy. But whatever his reason, he presumably didn't know it was wrong or that it could land him in prison. That's basically the "policeman at the elbow" test for insanity, i.e. would he have done it if he knew a cop was watching.
Mr. Otis, you say, "This defendant is going to be a ward of the state in one setting or another for the rest of his life .... If it's not prison, it's going to be a secure mental hospital." He should be treated only until he has recovered enough to be safe to release. Note that John Hinckley has been freed of all restrictions.
Posted by: Keith Lynch | Feb 2, 2023 1:09:47 AM
Doug --
Do you agree with the entire quotation from Bordenkircher I used to answer your question, or are you cherrypicking only the first part and putting the last sentence in the shredder? The reason I ask is that, as you know, the last sentence is the whole deal in answering the tiresome defense claim that the supposed "trial penalty" after failed plea negotiations is unconstitutional. The precise holding of Bordenkircher is that it isn't.
Now of course it's possible that Potter Stewart was a right wing freak, but I wouldn't like your chances of selling that to SCOTUS.
P.S. That other right wing freak, Justice Stevens, was the deciding vote for the Bordenkircher majority.
Posted by: Bill Otis | Feb 2, 2023 3:11:34 AM
TarlsQtr --
One reason the blog is popular is that it's the defense bar's Alternate Universe Supreme Court. They can lose Bordenkirher in the real world but "win" it here. They can lose Watts in the real world but "win" it here. They can lose Glossip in the real world but "win" it here. They can lose the waiver-of-appeal issue in every circuit (starting with losing it to me in the Fourth Circuit) but "win" it here.
Hey, look, when you're not doing so hot in court, there's always the Internet!
Posted by: Bill Otis | Feb 2, 2023 3:21:40 AM
Bill, though I have been focused on Tarls' and your notion of what is "deserved," I am happy to discuss constitutional doctrine and the decision in Bordenkircher.
1. The sentence you ask about --- "But in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer" --- as well as the entire Bordenkircher case are focused only on prosecutorial behavior in a case in which the prosecutor had fully informed the defendant that he was to be indicted as a habitual offender if he did not accept the offered deal. That is a key part of the ruling and the court later says: "There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise." This context means that Bordenkircher, as a matter of constitutional law, indicates it is important to explore just how and why prosecutors pursue additional charges after a plea is turned down to ensure prosecutors do not seek longer sentences on defendants SIMPLY for exercising their constitutional right to trial.
2. Bordenkircher speaks not at all to judicial sentencing decisions, and I trust you would worry if a judge gave statutory max sentences to every first offender who went to trial (while, say, giving much, much lower sentences to repeat offenders even absent plea deals). Of course, a single statutory max sentence alone may not reveal unconstitutional behavior, but that returns me again to the real challenges of how we make sure prosecutors do not seek, and judges do not impose, longer sentences on defendants SIMPLY for exercising their constitutional right to trial.
3. And all I just said upon your invitation to engage Bordenkircher's discussion of constitutional law highlights exactly why I was eager to pursue the views of you and Tarls as to whether you think the decision to exercise the right to trial "deserves" extreme punishment. If former prosecutors and others think the decision to exercise the right to trial "deserves" extreme punishment, that suggests there is a heighten risk that current prosecutors and judge may pursue punishment in ways that Bordenkircher suggests is unconstitutional.
Posted by: Doug B | Feb 2, 2023 8:48:40 AM
And, Bill, on interest in an "Alternate Universe Supreme Court," I recall from some months ago that you were unable or unwilling to name a single criminal constitutional SCOTUS case with a ruling for the defendant in the last 35 years that you think was rightly decided. (And, for the record, I think Bordenkircher and Glossip are right on the merits, and most of Watts has been reversed by Apprendi/Blakely/Alleyne.)
There have been, of course, hundreds of criminal constitutional SCOTUS rulings limiting federal and state criminal justice powers over the last three+ decade --- with a majority of Justices being GOP appointees throughout this whole period --- and yet it seems you are the one pining for an "Alternate Universe Supreme Court" that never puts limits on state CJ powers.
Posted by: Doug B | Feb 2, 2023 9:16:35 AM
Doug --
"And, for the record, I think Bordenkircher and Glossip are right on the merits, and most of Watts has been reversed by Apprendi/Blakely/Alleyne."
Glad to hear, for the first time, that you agree with Bordenkircher and Glossip. But while we're doing the "can-you-name-a-single-case" game, can you name a single case in which SCOTUS has said "most of Watts has been reversed by Apprendi/Blakely/Alleyne"?
I sure can't. I don't think that's the Court speaking. I think that you wishing. The Court had the opportunity to join your wish quite recently, in the Osby case (where the defense filed a cert petition almost identical to the one in McClinton), but didn't say anything like what you now say. In fact, wasn't cert denied in Osby without dissent?
I don't need an Alternative Universe. Unlike our All Seeing Masters in academia, I actually went to court and won, see, e.g., the waiver of appeal argument -- an argument in which you are just as confident and just as assertive as you are in the acquitted conduct argument, and have had exactly the same degree of success in court, namely none.
I'll take court, and you can have academic dreamland. (Full disclosure: I also spend some time in academic dreamland, by my pitiable take home pay hardly compares with your chaired professorship).
Posted by: Bill Otis | Feb 2, 2023 1:43:45 PM
Doug --
As to Bordenkircher specifically, your dictum-laden attempt to turn it into a win for the defense doesn't get too far. In fact, it was (1) a huge win for the government, and (2) almost identical in every legally relevant respect to the 150 year sentence here under discussion.
In both cases, so it appears from the article you quote, the prosecutor told the defendant that he would either plead to the sweet deal, saving the government the cost and delay of a trial, or face a massive sentence (in Bordenkircher, it was life). In both cases, the defendant told the prosecutor that he was going to trial anyway, and that the prosecutor could f*ck off. In response to the defendant's insistence, the prosecutor followed through on his threat. It was exactly that which the Court approved. If the resulting life sentence was more than Mr. Bordenkircher "deserved," the Court's answer was that, in the plea bargaining context, what you "deserve," Mr. Defendant, is what you in your arrogance and foolishness demand.
Posted by: Bill Otis | Feb 2, 2023 1:55:31 PM
Bill, Watts held that a judge could increase the mandatory/legal range of the federal guidelines based on acquitted conduct proven by a preponderance. After Apprendi/Blakely/Alleyne, it is clear that is no longer legally allowed for either the top or bottom of a legally binding sentencing range. So that part of Watts have been reversed by the Court's subsequent 5th and 6th Amendment jurisprudence. All that is left of Watts is whether acquitted facts can be used "in-range" in an advisory system.
As for this case and Bordenkircher, at least make some efforts to pay attention to the facts detailed in this article (or link to whatever source of different facts you think exist). Here are facts that are unclear or that you seem to have wrong:
1. We do not know if prosecutors here warned the defendant and his counsel that they would go from one count to 30 counts of CP possession. A clear warning of the dire consequences of turning down a plea was essential to the holding in Bordenkircher.
2. We do not know the details of why the defendant turned down the deal or what was said to prosecutors when he did. We do know, according to the reporting, that the defendant suffers from mental illness and that "Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind. He largely refused to talk to his lawyers, much less cooperate in his defense."
3. The prosecutors here, after the trial convictions based on the original count and the added 29 counts, requested a 21-year sentence for Mr. Stephens (not life with parole, which was the Bordenkircher mandatory minimum term based on the KY habitual offender statute).
4. We do not know why, after prosecutors proposed an initial plea to 3 years and then after trial recommended a sentence of 21 years, Judge Diaz decided to provide the absolute maximum sentence allowed for the 30 counts of conviction. You apparently surmise that the judge must have thought it was Stephens' "arrogance and foolishness" to demand that the government prove his guilt at a trial. That almost sounds like an admission that you actually do believe judges should impose longer sentences on defendants SIMPLY for exercising their constitutional right to trial.
In other words, Bill, you have the facts of this case wrong, and you are projecting your own visions of reality onto the case, and your vision seem to include a real desire to see defendants punished specifically for having the "arrogance and foolishness" to turn down a plea deal and exercise their constitutional right to trial. Nice work.
Posted by: Doug B | Feb 2, 2023 2:36:05 PM
Doug,
I know what a sensitive topic it is for you because you took such great offense. Hell, you can’t stop bringing it up in even other threads. Use woke language all you want. It is just a nice window into what drives some of your pro-criminal beliefs.
Posted by: TarlsQtr | Feb 2, 2023 6:11:00 PM
Keith Lynch,
I’m not sure if you want to compare two adults in the privacy of their own home with getting off to pictures of naked kids. At least I wouldn’t want to make such a comparison.
As far as Jared Stephens, do you believe it is more likely that he pulled child porn up on his computer randomly or because he had some sense that it would get a reaction? If the latter, doesn’t that indicate he knew it was wrong?
Posted by: TarlsQtr | Feb 2, 2023 6:16:19 PM
Tarls, I took no offense, but I continue to be amused by your affinity for speech codes and preferred pronouns. And I will likely keep bringing it up because it reflect on your mindset and sensitivities. But that does not make you automatically a bad person.
Posted by: Doug B | Feb 2, 2023 6:46:15 PM
On Feb.1, Tarls stated above: "If a murderer lives in a LWOP state, he deserves LWOP".
In other later threads, Tarls opinied that the starting point of sentencing is the (and here I am paraphrasing, but with accuracy) "maximum penalty" allowed by the law.
So if the "parameters of the law" allows for a penalty of several years in prison, then the offender is legally and morally deserving of that punishment. Example: Traitors/Insurrectionists of 1/6 are deserving of whatever the maximum that the law allows as punishment (several years, for some offenses). Tarls said so, and so it must be. After all, "Tarls is tough".
Therefore, anyone who whines about the 'severity' of the punishments imposed on those miscreants is obviously "soft on crime", or at worst, hypocrites.
Posted by: SG | Feb 2, 2023 7:19:59 PM
Doug --
"Bill, Watts held that a judge could increase the mandatory/legal range of the federal guidelines based on acquitted conduct proven by a preponderance. After Apprendi/Blakely/Alleyne, it is clear that is no longer legally allowed for either the top or bottom of a legally binding sentencing range. So that part of Watts have been reversed by the Court's subsequent 5th and 6th Amendment jurisprudence. All that is left of Watts is whether acquitted facts can be used "in-range" in an advisory system."
Let's assume for the moment that I tend to agree with your take on this. The problem is that I'm not the Supreme Court and neither are you. But the Justices are, and 18 months ago (and without dissent I believe) they turned aside the let's-revisit-Watts cert petition in Osby, knowing full well what they had said in Apprendi, et al.
Why was that? Maybe that the Court is content to leave Watts as it is?
"In other words, Bill, you have the facts of this case wrong, and you are projecting your own visions of reality onto the case, and your vision seem to include a real desire to see defendants punished specifically for having the "arrogance and foolishness" to turn down a plea deal and exercise their constitutional right to trial. Nice work."
First, I am indeed projecting my (extensive) experience with how plea bargaining works on the ground, correct. Second, together with the Bordenkircher majority (which you say you support), I want to see defendants perfectly free fatuously to exercise their constitutional right to trial, PROVIDED they're willing to live with the consequences when their concocted, shake-and-jive defense flops with the jury and they get a list of guilty verdicts (we do want to respect verdicts, right?) just as long as the list of felonies they committed (a list the prosecutor offered to whittle down considerably before he got told to go f*ck himself). The sentence for that long list is, you bet, likely to be longer, and perhaps much longer, than the sentence would have been for a shorter list. That's not a constitutional violation, as Bordenkircher indicates. It's just arithmetic.
Posted by: Bill Otis | Feb 2, 2023 8:25:38 PM
Doug and TarlsQtr --
Doug writes, "Tarls, I took no offense, but I continue to be amused by your affinity for speech codes and preferred pronouns. And I will likely keep bringing it up because it reflect on your mindset and sensitivities. But that does not make you automatically a bad person."
No, but it does make him contingently a bad person. Believe me, I know. He's as bad as they come. Fortunately, his kid is a lot smarter.
Posted by: Bill Otis | Feb 2, 2023 8:28:28 PM
Bill, I agree that the current SCOTUS seems content to leave the shrunken Watts as is. The new US Sentencing Commission seemingly is not, nor was the vast majority of the GOP caucus in the last Congress. And I am hoping, with Justice Breyer having moved on, that the Justices will show fidelity to the originalist principles that Justices Scalia and Thomas championed in the Apprendi/Blakely/Alleyne line of cases and will extinguish Watts fully. But I am certainly not counting on it (in part because, as you have suggested in our discussions of how Bruen will be applied, I fear there are that many truly principled originalists on the Court).
And I have never suggested it is inherently problematic for a sentence after trial to be longer than with a plea. But 147 years longer? And with the judge imposing 129 year longer than urged by the prosecutors? You know that's not just extreme, it is truly inhumane (given that humans do not live that long). And that you are Tarls are so eager to defend something that is truly inhumane is truly sad.
Posted by: Doug B. | Feb 2, 2023 9:25:24 PM
SG,
I have no problem with the 1/6 vandals getting the max sentence for a proven charge. What makes you believe I would think otherwise?
I would also approve of the maximum sentence for those who engaged in and aided the soft coup fraud of “Russiagate.”
I would also approve of the maximum sentence for all of those who misled the American people and impacted an election with the Hunter laptop coverup. Not to mentioned the scores of crimes committed by Hunter and The Big Guy. Just the number of sex trafficking crimes on there is mind boggling.
What I do get completely irate over, is the difference in treatment due to ideology.
As far as some getting less, I do understand external factors come into play. Crowded dockets, the expense of trials, etc.
Posted by: TarlsQtr | Feb 2, 2023 10:50:22 PM
TarlsQtr: You say, "I'm not sure if you want to compare two adults in the privacy of their own home with getting off to pictures of naked kids." I don't want to. The law does, or rather did before 2003. I was responding to your "I have said what they 'deserve.' Whatever the judge decides to give the person within the parameters of the law." Are you retracting that claim?
"As far as Jared Stephens, do you believe it is more likely that he pulled child porn up on his computer randomly or because he had some sense that it would get a reaction? If the latter, doesn't that indicate he knew it was wrong?" Again, I don't know why he did it. You don't know either. Presumably he wanted to get a positive reaction, so it seems that he thought it was praiseworthy. Or maybe his actions really were random.
If 147 additional years are okay, and not at all coercive, because he could have just pleaded guilty, then your being killed by a mugger is okay because you could have just handed over your wallet.
Posted by: Keith Lynch | Feb 2, 2023 10:52:46 PM
Doug,
If your students provide you with work that changes the very definitions of legal terms or abandons all rules of English grammar, do you deduct points? Is that a “speech code?”
And I hope you do keep bringing it up. I’m the one on firm ground.
Posted by: TarlsQtr | Feb 2, 2023 10:55:23 PM
Mr. Otis, you ask, "Was it a bunch of snuff films?"
It's never a bunch of snuff films. There is no known example of a snuff film, i.e. a film which depicts a murder which took place just to get it on film. Even if there was, it's not illegal to possess such a film.
Police are upset that millions of people have seen the video of their murdering Tamir Rice, a 12 year old boy. Maybe next time they want to kill a child, they'll sodomize him first, so that it will be illegal to have or show the video of their crime.
Posted by: Keith Lynch | Feb 2, 2023 11:00:28 PM
Doug,
In my experience working in prison, they generally remove the bodies after death and the prisoners don’t feel too much other than passing gas and crapping themselves upon death.
I’m not sure how inhumane that is.
I, as stated previously, also disagree with any premise that tethers a given sentence to the plea bargain offered.
I’m not sure you should want that either. If you desire to narrow that gap, it will merely move the plea offers to the right. If I want a guy to get 10 years, I offer a plea at 8 years instead of 3. You feel better about yourself but the clients do more time and your buddies get more billable hours.
Maybe that’s the plan?
Posted by: TarlsQtr | Feb 2, 2023 11:08:22 PM
Doug --
I have said that you sometimes misrepresent my position. You now provide a wonderful example. You write, "But 147 years longer? And with the judge imposing 129 year longer than urged by the prosecutors? You know that's not just extreme, it is truly inhumane (given that humans do not live that long). And that you are Tarls are so eager to defend something that is truly inhumane is truly sad."
What I actually said (in my comment yesterday at 4:07:33 pm) was this: "...no sentence for a term of years over 75 years makes sense, because human lifespans are what they are. Anything beyond that is showboating."
There is no version of the English language in which criticizing a sentence of more than 75 years amounts to a defense of a sentence of 150 years. But you're just off by a factor of two! (Still, not that bad for a Harvard guy. Maybe you should have tried Stanford).
Posted by: Bill Otis | Feb 2, 2023 11:23:08 PM
Keith Lynch --
In this thread about a sentence for possession of unspecified sorts of kiddie porn, you write, "Mr. Otis, you ask, 'Was it a bunch of snuff films?'" You then answer, "It's never a bunch of snuff films."
How would you know that?
Posted by: Bill Otis | Feb 2, 2023 11:32:17 PM
TarlsQtr --
"What I do get completely irate over, is the difference in treatment due to ideology."
DING DING DING
You gotta love it. For your child rapist, due process and no rush to judgment. For your January 6 defendant, hang 'em high and be quick about it. And then these guys get breathless about what civil libertarians they are.
Posted by: Bill Otis | Feb 2, 2023 11:37:57 PM
Bill: you did say "no sentence for a term of years over 75 years makes sense," but I still read --- perhaps misread --- your comments here as a defense of Judge Diaz's decision to impose 150 years. I apologize if I did not understand that you shared my view that this sentence is truly inhumane. I know you get concerned when you think I am misrepresenting your views, so I will put this is the form of a question:
Do you agree with me that the 150-year maximum sentence imposed here is inhumane? (If so, perhaps we can work together on an amicus brief in support of efforts to have the 150-year sentence vacated -- possibly on the grounds it is "cruel and unusual punishments" clause.)
Tarls: If a student provides work "that changes the very definitions of legal terms or abandons ALL rules of English grammar," that can hurt his scores. But if she just use "she" (or even "they") for a genderless pronoun, she certainly will not lose points, nor will I accuse her of "woke BS." It is telling how you had to badly distort the hypo to try to make a point, Tarls (and that kind of sloppy thinking and expression also can cost even more points).
And I am happy to continue this conversation about your preferred pronoun and speech code, Tarls --- or maybe I should call you the Hiroo Onoda of the pronoun wars (he likely thought he was still defending "firm ground" too). That said, there is a new Fifth Circuit Second Amendment ruling that might be more productive to debate.
Posted by: Doug B. | Feb 2, 2023 11:45:34 PM
Doug --
Thank you for the apology. In a thread this long, it's easy to forget what's been said before.
"Inhumane" is not the word I would use, because, for one out of several reasons, he's never going to serve anything like that. To know what the sentence should be, I'd have to know a bunch of things I don't know now. It would be ill-advised to say what sentence was deserved in a particular case without seeing the entire casefile, and I never did so when I was an AUSA. How old were the children? Four vs. seventeen makes a big difference. What was being done to them? Was it a bunch of snuff films? Were they being forced to have sex with animals? How severe is the defendant's alleged schizophrenia? What's his prognosis? What's his criminal record? Does he have a chronic attraction to children?
One thing in particular I'd like to see is the court's sentencing memo. Judge Diaz was thinking something, and I don't want to either endorse or condemn it without knowing what it was.
I can say that, when I was litigating, I never asked for a 150 year sentence and never defended one on appeal. In federal jurisdiction, where I spent my career, I never heard of a sentence like that for possession (only) of kiddie porn. Then again, I did very few cases CP cases. Mostly it was drugs, firearms and fraud.
Posted by: Bill Otis | Feb 3, 2023 1:00:47 AM
In my experience, even in the worst cp possession, receipt, or distribution cases, rarely did we have a sentencing over 10 years. We had a few that had multiple state priors that netted them additional time, close to 180-200 months, but that certainly was not the norm. Now production of CP was completely different, but that's not the issue here.
Posted by: atomicfrog | Feb 3, 2023 2:51:42 PM
Keith Lynch,
“Whatever the judge decides to give the person within the parameters of the law." Are you retracting that claim?”
Not at all. I assumed we were talking about laws that were at least constitutional. I wouldn’t punish people who smuggled slaves north either, but that is not comparable to this.
“Again, I don't know why he did it. You don't know either. Presumably he wanted to get a positive reaction, so it seems that he thought it was praiseworthy. Or maybe his actions really were random.”
Huh? Weren’t you one of those who was sure the guy was crazy? Suddenly, we can’t know? I guess that is why we have judges and my point was made.
Posted by: TarlsQtr | Feb 3, 2023 5:46:02 PM
Doug,
You didn’t answer this: “I’m not sure you should want that either. If you desire to narrow that gap, it will merely move the plea offers to the right. If I want a guy to get 10 years, I offer a plea at 8 years instead of 3. You feel better about yourself but the clients do more time and your buddies get more billable hours.”
Not being an attorney, I’d love to get your opinion. Does that ring true? It sure seems like human nature to me.
The hypo was not distorted. Only the severity is different. I believe you know that, but there is a reason academia and the legal profession poll below colon cancer. You happen to be both.
One can say a lot about Hiroo Onoda, but he is much better than those who willingly follow the masses into the daily “two minutes hate.”
Posted by: TarlsQtr | Feb 3, 2023 5:57:50 PM
As I understand the facts, the sentence here was as cruel, barbaric, and sadistic as any I've seen.
Posted by: Michael R. Levine | Feb 3, 2023 6:52:24 PM
Michael R. Levine,
Perhaps, but I expect the photos on that laptop were 10X more “cruel, barbaric, and sadistic.”
Posted by: TarlsQtr | Feb 3, 2023 7:13:00 PM
Tarls, thanks for flagging your comment about your concerns with any efforts that "tethers a given sentence to the plea bargain offered."
I think you are 100% right that if we had a strict rule or even a general custom that a prison sentence after trial should be, say, no more than double the prison sentence offered in a (final?) plea offer, then that would impact the prison sentence offered in plea bargains. But, as I see it, that is another virtue, not a vice, that could result efforts to "tether a given sentence to the plea bargain offered."
Let's use Elizabeth Holmes as our hypo. I think one might reasonably assert that the "right" sentence for her crimes is in the 10 to 25 year range --- though you might well think she deserves a lot more. In a world without tethering, a prosecutor might offer 5 years to get the case concluded and ensure a conviction, but then argue for 40 thereafter because she took the case to trial. But neither the offered 5 nor the later argued 40 is in the "right" sentence range. But if the prosecutor knows of the "no more than double" rule, he offers 10 and then argues for 20 after trial. Both the plea offer and the post-trial sentences are inside the "right" range that I hypothesized.
I have made up convenient numbers, but the fundamental point is valid: tethering post-trial sentences to plea offers should help avoid unduly lenient pleas AND unduly severe post-trial sentences. And I sincerely believe unduly lenient pleas can sometimes be a problem --- see, eg, Jeffrey Epstein --- though I tend to think unduly severe post-trial sentences are a bigger problem.
Posted by: Doug B. | Feb 3, 2023 8:51:05 PM
Doug,
That’s fine for Elizabeth Holmes and some specific cases, but let’s use a hypo on the very case above.
Because you tethered a sentence to a plea deal, this guy makes out better. But what about the 9 of 10 who accept a plea deal and would rather do 3 instead of 10 years, but the plea window was moved to the right?
Posted by: TarlsQtr | Feb 3, 2023 9:02:39 PM
If a defendant wants to do less time, he can and should make an effective case to the prosecutor that he can and should get a sweeter plea deal. That is often when well-heeled defendants can do, but that's harder for the poor folks with an overworked public defenders. In other words, leniency that we see in some pleas is likely to be inequitably distributed.
Is their a risk that "tethering" might reduce the prosecutorial leniency across the board? Maybe. But I largely doubt it because prosecutors have very little interest and lack the resources to take many cases to trial. That pressure is always going to lead them to make pretty sweet deals. It might reduce the most extreme outlier lenient sentence for the Epsteins, but that may be a benefit for the system as a whole. And I think we will also see an increase in trials, which would be another benefit for the system as a whole.
Ultimately, Alice Marie Johnson getting LIFE and Weldon Angelos getting 55 years and this guy getting 150 years troubles me more than the plea version of folks getting an extra year or two. But maybe it would work out different, and I'd like to see us try. We could always undo a tethering reform if we do not like its echoes.
Posted by: Doug B | Feb 3, 2023 9:40:30 PM
It’s all about perception. If a defendant got 10 years instead 20, it would seem like a “sweet deal,” even if I might have gotten 3 in the old system.
Posted by: TarlsQtr | Feb 4, 2023 1:07:55 PM
Mr. Otis:
> In this thread about a sentence for possession of unspecified sorts of kiddie porn, you write,
> "Mr. Otis, you ask, 'Was it a bunch of snuff films?'" You then answer, "It's never a bunch of
> snuff films."
> How would you know that?
As I already said, I know that because there is no evidence that any snuff films have ever existed anywhere at any time. Check with Google, Wikipedia, and Snopes. Or with whatever databases lawyers have access to. There are videos of murders, but "snuff film" means a film of a murder that was committed for the purpose of filming it. There is no evidence that anyone has ever been guilty of producing such a video.
Posted by: Keith Lynch | Feb 5, 2023 4:27:35 PM
