Tuesday, January 22, 2008

Proportionality in Sentencing - Padilla versus Ebbers, Skilling, and McFarland

A federal judge in Miami sentenced Jose Padilla to 17 years and 4 months today.  (see WSJ here; Miami Herald here).   The judge decided to give a lesser sentence because of the harsh conditions previously experienced by Padilla in his prior designation as an "enemy combatant." This below guideline sentence was for "terrorism conspiracy charges." (see AP here)  For complete coverage of the sentencing see Professor Douglas Berman's Sentencing Law & Policy Blog here and here and Howard Bashman's How Appealing Blog here.

But the question that we need to examine from the eyes of one examining white collar sentences is whether this sentence is proportional.  Should Padilla receive a lesser sentence than Bernie Ebbers (25 years), Jeff Skilling (24 years) and Chalana McFarland (30 years)?  Should these three white collar offenders be sent to prison for a greater period than someone who commits a crime related to "terrorism conspiracy?"  Perhaps the problem here is not the length of the sentence that Padilla received, but the draconian sentence being given to first offenders who commit economic crimes. (See Podgor, Yale Pocket Part here). Is this proportional, and if not which sentence(s) should be modified?



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Ah, two questions that suggest the answer. Let me resist. It seems that the discussion is missing an important factor that is considered by the Guidelines -- the circumstances of the defendant and aggravating and mitigating circumstances, quite aside from the nature of the crime. Consideration of all appropriate factors really answers both questions, i.e., the three WCC perps can be sentenced for a period greater that the perp who engages in a conspiracy (mindful that the object crime was not committed), and the sentences can be proportional without modification of any (although I am concerned that McFarland's has the appearance of disproportionality). It seems to me that, had the object(s) of Padilla's conspiracy come to fruition, the lesser sentence rationale employed by the Court would not have been considered.
If one were to consider only the nature of the crimes, which of course is not appropriate (at least under the Guidelines), then the answers suggested by your questions would apply.

Posted by: George Curtis | Jan 23, 2008 9:20:01 AM

The base question is why Ebbers, et al, should be in prison at all. They could be paying restitution if they were able to use their time and talents in the business world. In prison they earn enough to pay for their own commissary items and little else. This does not benefit those victims they damaged financially.

Posted by: Bubkis | Jan 23, 2008 10:00:52 AM

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