Thursday, June 23, 2005

Did He Not Hear the Sentences in White Collar Cases?

Doug Berman's Sentencing Blog has some wonderful posts here, here, and here on AG Gonzales' recent "prepared remarks" on the need to reactivate mandatory guidelines with  a "minimum guideline" system.  (see here).  The one ( see addedum below) A reference to white collar cases is found in the AG's statement that:

"In a case involving white collar crime, a Kansas rancher got 1.8 million dollars in cattle loans, falsely claiming that he was using the money to buy live cattle. He even took bank officials to livestock pens and claimed that the cows he was showing them were purchased with loan proceeds, when, in fact he lost all the money speculating on the cattle futures market. He pled guilty to defrauding the bank and faced a sentencing range of 37 to 46 months under the guidelines. But the judge gave him probation only, reasoning, in part, that the defendant had suffered enough when the bank foreclosed on his house. "

Like Professor Berman, I am troubled by the AG's desire to place restrictions of this nature on the judiciary. But what is perhaps most fascinating is having the AG being upset with a white collar case, a case in which a court was thoughtful enough to consider the collateral consequences that often occur in white collar cases, on the very day following a court handing down 15 and 20 year sentences in a white collar case, one sentence of which went to an 80 year old man. (Rigas' sentences here). 

And oddly enough these "prepared remarks" of the AG come on the very same day that sentences of two HealthSouth execs were vacated, on the government's appeal, because a rationale for the reduced sentences was not provided. (see here).

It seems obvious here that we have a DOJ leader that is not happy that he does not have control over all the cards in the deck. He states in these "Prepared Remarks" that:

"Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court. Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated."(emphasis added).

What does this mean?  It means the AG is now forced to share some of the exclusive power his office held in sentencing, with members of the judiciary. DOJ when they don't like a sentence are now placed in the same position as defendants have always been in, appealing that decision to a higher court.  And in some cases they will be successful on appeal as indicated in the HealthSouth exec case, and in other instances they may fail. 

Giving all the  POWER to one branch, however, and specifically one office here (DOJ),  is not the answer.  The answer is for there to be a proper balance of power between all three branches.  It is important for Congress to remember the words of James Madison of Feb. 1, 1788:

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. "


Addendum - Doug Berman appropriately points out that the AG also mentions a white collar tax case where the defendant's sentence was modified post Booker due to "the defendant's age and the need to take care of his wife – not normally relevant sentencing factors pre-Booker – now justif[ying] a lesser sentence."   Again my response is - if you don't like it appeal -- just like defense attorneys have to do all the time.  Just maybe, factors like age and family responsibilities are important to society and punishment theory. After all, are we punishing the individual or his or her family?

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