The Criminal Lawyer

Yesterday, President Obama signed S.1789, the long-awaited sentencing fairness act that reduced the appalling 100-to-1 sentencing disparity between crack cocaine and powder cocaine.  It still doesn’t go all the way to undo the hysteria of the crack epidemic, however.  For powder cocaine there’s a 10-year minimum for selling or possessing with intent to sell 5,000 grams — for crack cocaine the figure was just 50 grams, but that just went up to 280 grams.  There’s a 5-year minimum for selling/possessing with intent 500 grams of powder — for crack that just went up from 5 grams to 28 grams.  So there’s still a roughly 18-to-1 sentencing disparity.  And the 5-year mandatory minimum for mere possession of crack — personal use here — was eliminated entirely (it had applied to possession of 5 grams for first offenders, 3 grams for second offenders, and 1 gram for third offenders).

That’s all good news.  Getting rid of the mandatory minimum for mere possession is the best part, because throwing people in jail for mere possession is stupid, wrong, unjust, and doesn’t solve the problem.  Drug court and treatment diversion programs work very well.  (The new law also requires a federal report one year from now on just how well the federally-funded drug court programs are doing.)  Reducing the sentencing disparity from the appalling (and racist) 100-to-1, to the merely shocking (and still racist) 18-to-1… well, it’s better than nothing.  Powder and crack are equally bad, there is no disparity in their effects, their addictiveness, or anything meaningful.  There shouldn’t be any disparity at all.  But reducing it is a step in the right direction, and the new law is rightly praised for so doing.

But in all the hoopla, the press (and the defense bar) seem to have overlooked the other provisions of the new law — provisions which can dramatically increase some drug sentences.

There are now 2+ level enhancements for drug crimes involving violence or the threat of violence (not unheard of).  There are now 2+ level enhancements if premises were used for the manufacture or distribution (very common).  There will be 2+ level enhancements if the defendant was using his girlfriend to mule the drugs, or an addict to sell the drugs on the street in exchange for a freebie, or any other typical buffering relationship.  There will be 2+ enhancements if they sold to, or involved, someone under 18, someone over 64, or someone who was pregnant (common).  There are 2+ enhancements if the defendant made his living by selling drugs (a majority of cases, no?). 

That’s just a partial list of enhancements.  But you can see how a typical drug defendant can now wind up facing significantly more time now than before Obama signed “the Fair Sentencing Act of 2010. ”

We can think of a number of ways to describe the new law.  “Fair Sentencing” is not one of them.

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)

Just a quick update.  The Supreme Court decided Dillon v. U.S. today (read the opinion here), and the decision totally sucks.  Here’s what we said about it a couple of weeks ago:

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

But noooo.

Writing for a 7-1 majority (Stevens dissented, and Alito recused himself), Justice Sotomayor said that Booker doesn’t apply here — the Guidelines are not advisory, and have to be applied as they were back in the bad old days.

This is just infuriating.  The 100-1 disparity in sentencing for crack vs. powder cocaine is fundamentally unjust.  One would think that the judiciary would just wipe it out as simply unconstitutional.  But instead, we get the Supremes saying §3582(c)(2) — the whole point of which is lenity for those sentenced under the disparate Guidelines — doesn’t allow for any lenity beyond what the Guidelines themselves permit.

Sotomayor’s legal reasoning isn’t bad.  It’s actually pretty good.  But her result is appalling.

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the (more…)

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional (more…)

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your (more…)

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

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Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

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So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.

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This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.

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But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.

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Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.

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Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.

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Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law.

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18 U.S.C. § 3553 says there are four purposes of criminal punishment:
(1) “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” [retribution]
(2) “to afford adequate deterrence to criminal conduct;” [deterrence]
(3) “to protect the public from further crimes of the defendant;” [removal]
(4) “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” [rehabilitation]

18 U.S.C. § 3582 says that a sentencing court has to consider those four purposes of punishment in deciding whether to impose a prison sentence, and in deciding how long a prison sentence should be. However, it adds that the court must recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

In other words, the law implicitly recognizes that prison, in and of itself, doesn’t rehabilitate people. Departments of “Corrections” have nothing to do with correcting people’s behavior. (It’s Orwellian, isn’t it? And so is the concept of incarcerating people for the purpose of re-education.)

This comes as no surprise to anyone with any experience with the criminal justice system. Imprisonment does not make people stop committing crimes. Studies have shown that roughly 83% of people who get arrested will never get in trouble again after that one single encounter with the system. Either they’re scared straight, or their behavior was a one-off exception to an otherwise blameless life. This is why we have consent decrees, adjournments in contemplation of dismissal, and the like. Most people, if given a second chance, will never get in trouble again. Incarceration is completely unnecessary to “rehabilitate” these people.

The other 17% or so? They keep coming back. Incarceration does not stop them from getting in trouble again once they get out. It is stupidly obvious that prison does not rehabilitate repeat offenders.

Rehabilitation is not so much an aspect of punishment, so much as it is an opportunity incidental to it. There certainly are life-altering programs, typically long-term programs, that can get people out of drug dependencies or ways of life conducive to criminal behavior. But these are exceptions, not the rule. They change circumstances, not behavior. And they can sometimes be best administered in an incarcerated setting — but often they are just as effective in a non-jail setting.

Meanwhile, the circuits are split on just what § 3582 means when it says “the court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall . . . [recognize] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Some circuits — like the Fifth, Sixth, Eighth and Ninth Circuits — say that the court should not decide whether to impose prison based on considerations of rehabilitation, but it is okay to increase a prison sentence for the purposes of rehabilitation. Other circuits — like the Second, Third, Tenth and Eleventh Circuits — say that courts shouldn’t increase prison sentences, either.

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Today, the D.C. Circuit joined the Second and Third Circuits in saying that § 3582 prohibits courts from increasing a prison sentence for the purpose of rehabilitation.

In re: Sealed Case*http://pacer.cadc.uscourts.gov/common/opinions/200907/08-3029-1198396.pdf*, No. 08-3029 (July 28, 2009) dealt with an older defendant with a long rap sheet and a drug addiction. His name is sealed because at one time he had tried to cooperate with the feds, albeit unsuccessfully. The defendant pled guilty to selling less than five grams of heroin. Ordinarily, with his criminal history category and acceptance of responsibility, this would have given him a sentencing range of 24 to 30 months. However, what with his felony record and all, his Guidelines range wound up being 151 to 188 months (12.5 – 15.5 years).

This is only advisory, of course, and the court then weighed the various § 3553 factors to figure out what sentence to actually impose. The judge said his recidivism was due to his drug addiction, and the case only involved a small amount of drugs. The judge added that the defendant could benefit from some of the programs available in prison, and that these “would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.”

In the end, the judge went down to a sentence of 132 months (11 years), along with a recommendation that the defendant be admitted to the prison’s “500-hour” drug treatment program.

The defendant appealed, saying that the judge would have given him a shorter sentence, but increased the sentence for the purposes of rehabilitation, and that was improper. It urged the Circuit to adopt the rule of the Second and Third Circuits.

The government, on the other hand, said they should adopt the Ninth Circuit’s rule instead, permitting increases in sentencing for the purpose of rehabilitation.

In its 2-1 ruling today, the D.C. Circuit said that the plain language of the statute bars courts from seeking to achieve rehabilitation through imprisonment. A defendant can be imprisoned for other purposes, and then take advantage of rehabilitative programs while in jail, but those programs cannot be the reason for incarceration.

The government argued that this only prohibits choosing jail over a non-jail sentence based on such considerations. Once the sentencing court has decided to incarcerate, § 3553 requires courts to consider rehabilitation, so it must be a reason for determining the length of the sentence.

The Circuit said this made no sense. “If, as the government concedes, imprisonment is not an appropriate means of promoting rehabilitation, how can more imprisonment serve as an appropriate means of promoting rehabilitation?”

The court went on to find that the sentencing judge’s comments indicate that the defendant probably got extra time so as to give him more opportunities for rehabilitation. It was reasonably likely that his sentence would have been shorter, otherwise.

Maybe not a dramatically shorter sentence — after all, the judge did say that selling heroin is serious, and that the defendant had a lifelong pattern of recidivism. But that’s not the point. The point is that the defendant might have gotten a shorter sentence.

Any unwarranted extra time in prison is unfair. It’s not what our system is supposed to permit. So the Circuit vacated the sentence, and remanded for new sentencing.

The defendant might wind up getting the same sentence at the end of the day. But the sentencing court is going to have to explain that the reasons for the length of the sentence do not include the extra opportunity for rehabilitation from extra months in jail.

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This exacerbates the split among the circuits. And the issue is an important one, involving the deprivation of liberty and freedoms for the purposes of social engineering.

We wouldn’t be surprised to see the Supreme Court take up this issue in the near future. Perhaps even with this case.

So Marc Dreier was sentenced today to 20 years in prison, plus forfeiture of $746 million and restitution of nearly $388 million (that’s more than a billion dollars, with a “b”). That’s his punishment for his guilty plea to conspiracy, securities fraud, money laundering and wire fraud. The feds had asked for 145 years in prison, and Dreier’s counsel Gerald Shargel had asked for a sentence in the 10-12.5 year range.

We have to say, we’re not offended by this sentence. It’s high enough to be meaningful, but not so high that it will scare away future plea bargains in white collar cases.

It’s important to have a meaningful sentence, if the justice system is to function properly. If justice is not perceived to be done, then law and order lose their authority. For many years, white collar crimes were seen to be treated unjustly, with sentences too low for the harm done. A massive financial fraud could have many more victims than a violent street crime, and can do far more damage to each victim by taking not just their wallet, but the savings representing a lifetime of labor. But until recently, such frauds were punished far more lightly.

In recent years, however, the pendulum began to swing the other way. From Tyco to Enron to MCI to Madoff, we saw white-collar sentences lurch upward and upward. Madoff’s 150-year sentence earlier this summer was just amazing, and not at all proportionate to the harm done. The pendulum had swung too far.

If that was to be the new par for the course, white collar sentencing would be just as unjust as it was in the days of the old slap-on-the-wrist. In addition to the very real problems of perception, in a world where perception equals reality, there is the separate problem of efficiency.

If people think they’re going to get slammed at sentencing whether they plead guilty or not, as Madoff did, then there is no point to pleading guilty. One might as well take one’s chances with a jury and shoot for the off chance of an acquittal. It happens.

(As an aside, there’s an old story of a band of soldiers in medieval China, who had become lost in a swamp en route to a muster. The penalty for being late was death. The penalty for rebellion was death. So they rebelled. And eventually toppled the government. Extreme punishments have had extreme public reactions throughout history. *Cough*drug laws*cough*)

Here, the government wanted 145 years for Dreier, to punish him for putting one over… not on mom and pop investors, but on sophisticated hedge funds who really ought to have done their homework. That would be just five years less than what Madoff got, for essentially doing the same thing. But it would have been a horrible outcome for our criminal justice system if they actually got their way.

Fortunately, Dreier drew Judge Jed Rakoff, who has been vocal in opposing the recent trend towards ever-higher sentences in white collar cases (in addition to his criticism of the severity of the U.S. Sentencing Guidelines). Rakoff is making him give back the money he filched, and forfeit his ill-gotten gains, and serve a prison sentence equal in severity to his crimes.

Nobody can reasonably say Dreier got off light, and nobody should complain that his sentence was unjustly harsh. We think Judge Rakoff nailed this one.

When we started law school back in ’93, we felt that white-collar criminals just weren’t punished that harshly in this country. The Dilbert strip above, from about the same time, shows that we were not alone in thinking this. It seems that this was a common perception going at least as far back as our early childhood — click on the audio button above to listen to an early ’70s National Lampoon skit called “Prison Farm.”

Like many, we felt that there was some serious injustice going on here. Socioeconomic elites were getting off lightly, even though they may have victimized far more people, far more seriously, than street-level crooks who were doing hard time. A mugger takes one person’s money, and gets a long sentence in a high-security prison. Meanwhile, a Wall Street scammer wipes out thousands of families’ savings, erases their years of labor and planning, and gets a slap on the wrist. It seemed absurd, like something from Alice in Wonderland.

And we weren’t wrong. As late as the early ’90s, we had guys like Mike Milken serving less than two years, even after the sentencing judge (Kimba Wood) had said such things as “You were willing to commit only crimes that were unlikely to be detected…. When a man of your power in the financial world… repeatedly conspires to violate, and violates, securities and tax business in order to achieve more power and wealth for himself… a significant prison term is required.”

The lesser sentences were of course due in no small part to the difficulty of spotting white-collar crime in the first place, and then proving it to a jury. Also, the law itself classified these crimes at the less-serious end of the spectrum. So you had to expect significant plea bargaining in difficult-to-prove cases, and the plea sentences were being discounted from relatively short terms in the first place.

Another important factor was the socioeconomic status of the white-collar defendants. These were not street thugs, they weren’t skeevy bottom-feeders. They were college-educated, productive members of the community, involved in charities and otherwise living “normal” lives. Their crimes weren’t violent, they were almost administrative. Victims weren’t in your face, with visceral injuries and tangible losses; they were anonymous and diffuse, with paper losses of mere money. These middle- and upper-class defendants weren’t people who belonged in prison — their loss of status, their shame, did more to rehabilitate and deter than any time behind bars. Judges felt this, and acted accordingly.

But by the time we graduated law school, this had all started to change. By then, the federal Sentencing Guidelines had gone into effect. The Guidelines had three major effects on federal cases. First, they increased the penalties for white-collar crimes, especially where the dollar amounts were high and there were many victims. Second, judges lost most of their discretion to sentence lightly based on the defendant’s socioeconomic status, and were not all that willing to put such reasoning on the record. Third, the Guidelines took away much of the plea-bargaining leeway, only permitting two or three levels of departure for taking a plea.

The biggest change happened when the tech bubble burst in 2000. In the late ’90s, Americans became investors like never before, with even cops and construction workers becoming day traders at home. Tons of our money went into IRAs, brokerage accounts and 401(k)s. And then the bubble burst, the markets dipped, and the average Joe saw his investments tank. As always happens, this revealed financial frauds that had escaped unnoticed in the up market. The middle class was outraged, and began to demand severe penalties for the fraudsters.

Prosecutors and judges got the message, and the exposed fraudsters got slammed. WorldCom’s Bernie Ebbers got 25 years. Enron’s Jeff Skilling got 24 years and 4 months (Andy Fastow, reported to be the primary Enron fraudster, cooperated and got six years). Adelphia’s John Rigas got 15 years. In state court, Tyco’s Dennis Kozlowski got 8-1/3 to 25 years.

This pattern repeated itself in the recent economic downturn. After several boom years, a credit crunch and market dip exposed many white-collar offenses (most of which we are told are still in the pre-indictment phase). Voters had lost a lot, and their voices were heard.

So now we get yesterday’s 150-year sentence of Bernie Madoff. As we’ve explained before, we’ve avoided writing about the Madoff case, because everyone else is already talking about it, and we don’t feel like we have anything new to add.

But this 150-year sentence… we’re going to go against the grain here and wonder out loud if perhaps it’s too harsh.

* * * * *

Whoa. How can we say that, when we just got done saying how unjust it seemed when white-collar types were getting off lightly? Isn’t this exactly what we wanted?

No, it isn’t. We wanted the punishment to fit the crime, and to fit the policies underlying criminal punishment. This sentence doesn’t do that.

For one thing, Madoff took a plea to avoid trial. And yet he still got the worst sentence that he could have gotten had a jury convicted him. What was the point of taking a plea? This sends a strong message to white-collar defendants now: you might as well just go to trial, because you’re going to get the same sentence if you lose — and juries being what they are, you might just win. The system could see a lot fewer pleas — pleas it relies on to keep working.

For another thing, Madoff got a bunch of consecutive sentences. Normally, even after trial, they’d mostly run concurrently. He’d have gotten about 30 years — still a life sentence for a 71-year-old guy. Judge Chin said he did so for “symbolic” reasons, to make the victims feel better. But is that a valid purpose of sentencing?

Of course it isn’t. The purpose of sentencing is not to make victims feel better, or give them closure, or anything like that. The criminal justice system does not serve the function of making victims whole. That’s the job of the civil courts. A criminal court can order restitution as a condition of sentencing, but that’s about it. The purpose of sentencing is not reparation, but punishment. Punishment is supposed to deter future crimes, retaliate against the offender, rehabilitate the offender so he doesn’t do it again, or remove a threat to society.

But maybe Judge Chin is on to something here. Perception is important. Few of the purposes of punishment work unless there is some perception. Deterrence doesn’t work, unless people get the impression that crimes are probably going to be punished, and that they will probably be punished harshly enough to make them not worth your while. (This raises an interesting thought experiment — would the criminal justice system work just as well if we could give the public the impression that crimes are punished, without actually incurring the expense and hassle of, you know, punishing them? Discuss.)

Another problem we have with this sentence is that his scam wasn’t directed at Joe Retail out there. It was a secretive investment fund that did not disclose what it was doing, as it would have had to if it had been sold to the average person. It could be secretive because it was sold to sophisticated investors. These sophisticated investors saw an unusually high and steady rate of return, and instead of investigating to see what was going on, simply told Madoff to cut them in.

Sophisticated investors have a duty to check these things out. Are we blaming the victims here? Yeah, a little. They had the size or experience to know that something that sounds too good to be true probably isn’t. And yet they shoved their money into the fund anyway. And for those who shoved all of their money into the fund, ignoring basic investment principles of diversification, they were victimizing themselves just as much as if they’d invested in Pets.com. And for those who invested beyond their discretionary income, but actually sent Madoff the money they needed to live on, that’s the epitome of dumb. These weren’t blue-collar workers, these were investors with enough dough to get in the game, and enough savvy to have known better. The law just doesn’t need to afford them the same protections as ordinary folks.

So the law doesn’t need to impose punishments harsher than those imposed on victimizers of ordinary folks.

What is needed is parity. Yes, white-collar sentences should reflect the seriousness of the harm done, just as sentences for violent crimes and street crimes need to be proportionate to the offense. A white-collar offense that causes as much harm as a back-alley mugging probably deserves a similar punishment, all else being equal. Maybe a little less, actually, as there is more likelihood of deterrence or rehabilitation. White-collar crimes are usually calculated, they aren’t crimes of the moment, and offenders usually have the smarts to take punishment into account. And white-collar offenders aren’t as likely to re-offend once they’ve gone through the system. So sure, maybe they don’t need quite as much punishment. But it ought to be about the same.

Giving 150 years here, though, is not at all proportionate. Murderers don’t get that much. Kidnappers don’t get that much. And taking someone’s life or liberty is just not the same as taking someone’s property. White-collar victims only lose money. It’s only money. It’s a big deal, but it should not be punished more severely than crimes that are obviously more severe.

The pendulum has swung too far.

GEN. MELCHETT: Field Marshall Haig has formulated a brilliant new tactical plan to ensure final victory in the field.

CPT. BLACKADDER: Ah… Would this “brilliant plan” involve us climbing out of our trenches, and walking very slowly towards the enemy?

CPT. DARLING: How could you possibly know that, Blackadder? It’s classified information!

CPT. BLACKADDER: It’s the same plan that we used last time. And the seventeen times before that.

GEN. MELCHETT: Ex-ex-ex exactly! And that is what is so brilliant about it! It will catch the watchful hun totally off guard. Doing precisely what we’ve done eighteen times before is exactly the last thing they’ll expect us to do this time! There is, however, one small problem.

CPT. BLACKADDER: That everyone always gets slaughtered in the first ten seconds.

GEN. MELCHETT: That’s right.

From “Blackadder Goes Forth” Plan A: Captain Cook

(Quoted scene begins around 8:30)

Because of the frankly horrible topic of this post, we thought we’d dilute it a bit with a bit of Atkinson, Fry and Laurie. But it’s on point. As this clip illustrates, it simply defies common sense to try the same thing repeatedly and expect a different outcome.

But in child porn cases, defendants and their attorneys keep trying the same thing over and over, and all that happens is they go to jail.

We’re talking about the “I was only doing it for research” defense. Pete Townshend of The Who tried it, to no avail (although possession charges were dropped six years ago today, when no porn was found to be in his possession, he was still put on the sex offenders registry for paying to visit a child porn site). Any number of less-well-known defendants have also tried it and failed. Washington Post reporter Lawrence Charles Matthews tried it, and he actually had done a radio series on the subject, and he still got time (and his case, U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) specifically held that there is no exception for journalistic or other allegedly-legitimate uses of child porn). A law enforcement officer, Michael McGowan, claimed to have been doing his own investigation on his own time, and wound up getting 20 years. Talk show host Bernie Ward claimed he was doing research for a book, and got 87 months last year.

Even though the defense never works, people keep trying it. And so we come to erstwhile war hero Wade Sanders, the former assistant deputy Secretary of the Navy who came to national prominence when he vouched for former presidential candidate John Kerry, who just got sentenced to federal prison.

First, some background. CAUTION: EXTREMELY DISTURBING CONTENT FOLLOWS.

During an apparently typical investigation, an undercover FBI agent logged onto a peer-to-peer file sharing service (where members can copy files from each other’s computers), and searched for computers containing files with the term “pthc,” which is shorthand for “preteen hardcore.” The agent found several child porn files on Sanders’ computer, including a photo of a preteen naked girl lying on her back with ejaculate on her stomach, a 10 minute video of adult males inserting their penises into the mouths of prepubescent naked girls with one scene of ejaculation, and a photo of two naked prepubescent boys engaged in anal intercourse. It was easy to identify the location of the computer where the files were located, and a search warrant was obtained. On executing the search warrant, three computers and an external hard drive were seized, all of which contained many more equally disturbing photos and videos. (This is common. Most offenders who possess child porn possess a large quantity of it.)

During the search, Sanders spoke with the agents. When asked if any child porn would be found, he only said that he sometimes encountered it while downloading adult porn, and always deleted it. At no time did he suggest that he was conducting research that might explain any child porn they might find. And he wasn’t found to actually have any research notes or materials.

The evidence appeared strong enough that he decided to plea to the charge, under 18 U.S.C. § 2252(a)(4)(B). Under the Guidelines, his offense level was adjusted upwards for having materials involving under-12 kids, using computers, distributing materials, and possessing over 600 images, to level 29. He got the standard 3E1.1 three-level reduction for accepting responsibility, getting him to level 26, with a sentencing range of 63 to 78 months.

At sentencing, the prosecution asked for the low end of 63 months. Sanders sought probation.

In his own defense, Sanders claimed that he was researching child porn, but with a twist. He started by saying he’d gone through hell in Vietnam combat. Then, in 2004, he started supporting John Kerry for president, and was criticized by other veterans. This criticism made him feel betrayed, and sparked an onset of post-traumatic stress disorder. This PTSD manifested itself with obsessive-compulsive behavior. He then stumbled on an image of child porn, was horrified by it, and became overly protective of the little kids. So he obsessively began trying to find out where the kids came from and the conditions they lived in.

The judge, Thomas Whelan, flatly stated that he didn’t buy it. He found no evidence that Sanders was telling the truth about being involved in any research. Sanders never mentioned this during the search, either. And his own story didn’t explain the stuff he’d downloaded before 2004. Judge Whelan also pointed out that the “I was only doing research” claim, even if true, is still not a valid defense under the law.

So, although the judge did come down off the Guidelines sentence, Sanders still received 37 months in prison — at the end of which he will be 105 years old. In all likelihood, this is a life sentence for the man.

* * * * *

What puzzles us is why people keep trying this defense, when the law doesn’t recognize it and it never ever works?

If we might be a little shameless here, we’d recommend that people try our piece titled “Understanding the Investigative Process to Better Defend Your Client,” in Inside the Minds: Strategies for Defending Internet Pornography Charges (2008). Or they might take our online CLE on defending internet porn cases, (the first in our “Hope for Hopeless Cases” series with West LegalEdcenter, which also includes that chapter in the course materials.

These cases rarely go to trial. Like Sanders, defendants usually plead out because the evidence appears overwhelming. Still, appearances can be deceiving, and there are often ways to attack the evidence itself. Maybe not enough to justify taking the case to a jury, but perhaps enough to negotiate a better deal. (Not implying that was the case with Sanders, nor impugning his attorney in any way, of course.)

What is most likely to work, however, is not trying to explain it away. Rationalizing the evidence is only going to hurt your credibility, as it did to Sanders.

Instead, what is most likely going to work is to attack the evidence itself. This is time-consuming and expensive, and isn’t guaranteed to work. After all, investigators have the luxury of building their own cases, and cherry-picking the strongest cases from the enormous number of possibles they could charge. Ideally, you want to be able to give the prosecution a new way of looking at the evidence, so that they realize it’s not necessarily as strong as they originally thought. It takes deep understanding and analysis by experts, as well as compelling advocacy. But even in a less-than-ideal situation, the more you can put the prosecution on the spot to defend its evidence — that the photos are real, that they depict real people, that the kids really are minors, etc. — or the more you can raise doubt about how incriminating it is, the better your chances of a decent plea offer.

Prosecutors rarely change their assessment of what a case is worth based on excuses and rationalizations. They made up their mind based on the evidence they have. A good defense is going to give them a new way of looking at that evidence, to get them to re-assess the defendant’s culpability, their chances of success, or (yes) the amount of work they’re going to have to do if this goes to trial.

And FOR THE LAST TIME, PEOPLE, “I was only doing research” is NOT going to do the trick.