Mar
04

Sentencing and its Discontents

I was sitting with a client, a federal prosecutor and a FBI agent the other night. We were engaged in what is known as a “reverse proffer.” That’s where the government tells a defendant what it intends to prove at trial. The government’s goal is to persuade the accused to enter a guilty plea.

“The maximum penalty you face if convicted is 40 years,” the prosecutor said.

I started to giggle. The prosecutor’s eyes widened.

“That’s a bluff,” I said. There was no way my client would ever be sentenced to such a term of imprisonment. The allegations against him consist of a claim of fraud; the amount in question somewhere in the area of $120,000.

She wasn’t happy with me for calling her bluff, but she knew I was right. Federal sentences, whether after a guilty verdict or a guilty plea, are influenced heavily by a bizarre set of guidelines resulting in the assignment of a numerical value to each offense. That value is then plugged into a table that forecasts a sentencing range. Judges are obliged to give weight to the table, although not necessarily to follow it. Call it Satan’s little cookbook.

In my client’s case, the likely sentence if he was convicted after trial would be somewhere in the area of two years, far less than 40 years. If he entered a plea, he might save himself six or so months. He was being asked to sacrifice the chance for an acquittal for a small discount on any prison sentence.

“You’ll have to do better than that,” I told the prosecutor. “Why would we agree to forego the chance of an acquittal for just a few months consideration?”

We’ve agreed, for the time being, to talk again before trial.

Press reports routinely cite the maximum penalty for a given offense. Almost always careful to note that the defendant “faces” the time, the stories rarely report the gritty reality of sentencing. It’s a rare defendant who actually gets the maximum.

Judges, at least at the federal level, labor to set the right sentence for the right reasons. There is a very complex body of law arising from appellate court review of federal sentencing decisions.

 State court, by contrast, is the Wild West, at least insofar as sentencing is concerned. Judges can do almost anything they like, so long as they color within the lines drawn by legislators.

All crimes reflect a maximum period of incarceration; some have mandatory minimums. A judge can’t sentence a defendant to more time or less time than the legislature mandates.

Although there is a robust body of law governing whether federal judges have imposed “reasonable” sentences, there is little such law governing the state courts.

Appellate court review of state sentencing decisions is governed by a very permissive standard: Did the judge abuse his or her discretion in imposing sentence? I think of the standard in the following way: abuse of discretion is a license to sin without need of confession.

I wish the state Appellate and Supreme Court were more involved in reviewing sentencing decisions

Last month, a ray of hope dawned in Hartford, when the state Supreme Court overturned a 100-year sentence imposed on a seventeen-year-old juvenile, Ackeem Riley. He was convicted of murder after opening fire on a Hartford crowd from a passing car in 2006.

Some judges are known throughout the criminal defense bar as “long-ball hitters,” or hanging judges. One federal judge in Hartford has earned a special nickname: prisoners call her “The Time Machine.”

The judge who sentenced Riley, Thomas V. O’Keefe, is normally a reasonable enough fellow. But he was outraged by Riley’s conduct. He wanted to make sure the young man never walked the streets again. You don’t impose a sentence of 100 years on someone with anything less than the determination to see to it that the defendant dies in a cage.

I recall a sentencing years ago in which a federal judge sentenced a client of mine to multiple life terms, each to be served consecutively, in other words, one after the other. As she imposed sentencing, the client and I shared some gallows humor.

“You know what this means, don’t you?” I whispered as the judge intoned.

“The first couple of times you die, the government’s got to revive you. Otherwise its an illegal sentence.”

We were grasping for hope amid a sense of despair.

When the client was stabbed to death in a federal prison several years ago, there was no reviving him. The unserved portion of his extraordinary sentence remains floating in the wind.

Sentences of this sort make a mockery of justice.

In a 5-2 decision, the state Supreme Court sent the Riley case back to O’Keefe for resentencing. Guided by a recent federal Supreme Court decision holding that imposition of life sentences without possibility of parole on juveniles violates the Eighth Amendment ban on cruel unusual punishment, our court told O’Keefe to try again. There will be a new sentencing hearing.

“The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Andrew McDonald wrote for the court. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”

Were I a praying man, I’d ask the heavens to remove the scales from Judge O’Keefe’s eyes, and to permit him to understand that however vicious the crime, no one is the mere sum of his worst moments. Juveniles aren’t adults, there’s solid neuroscience to support the conclusion that adolescent brains aren’t fully wired. A man-child can make a horrible mistake without losing his humanity.

We’ll be judged harshly at some point in the world’s history for our too easy resort to imprisonment. There’s something savage about the ease with which even good judges impose draconian sentences.

All eyes on Judge O’Keefe now as he resentences Ackeem Riley. Will he serve the prosecutor’s bluff or call it?

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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