A Sentencing Opinion Invoking Lord Denning and Dostoyevsky
Senior U.S. District Court Judge John L Kane, Jr. (Colorado) issued a brave sentencing decision today in a child p!rnography case. (Opinion in USA v. Rausch, here.)
In it, Judge Kane examines the purpose of sentencing and punishment, invoking Lord Denning, Dostoyevsky and others.
The defendant was charged with possession of less than 100 child p!rn images. The Sentencing Guidelines called for a sentence of 97 to 120 months. The Government asked for 97 months. [More...]
The defendant, a pedophile with no prior record, is a former Bureau of Prisons employee, on kidney dialysis and a transplant wait list with a history of other medical ailments.
The sentence: One day with credit for time served, lifetime supervised release, registration as a sex offender and home detention until the Probation Department decides otherwise.
From the opinion:
Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.” In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards. The restraint on this principle, however, is that punishment is only justifiable when it is deserved. Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment.
As Judge Weinstein observed in United States v. Gigante, 989 F. Supp. 436, 422 (E.D.N.Y. 1998):
[T]he principle of modifying a sentence to take account of a defendant’s frailty has strong and ancient roots. See, e.g., The Code of Maimonides, Book XIV, The Book of Judges (Abraham M. Hershman, trans., Yale Univ. Press 1949 (emphasis omitted) (“How many stripes are inflicted . . . as it is said: to be beaten . . . according to the measure of his wickedness . .. (Deut.25:2). But the number is reduced in the case of a frail man . . . .”).
Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making
them wear shackles).
Judge Kane continues:
Title 18 Section 3553(a) provides evaluative criteria to restore balance between the order of society emphasized by the retributivist approach and the utilitarian view that every human being must be treated with respect for his or her individual circumstances. The stated criteria may clash, and not all apply in each case. The criteria also point to individuated considerations : No one size fits all. The object of this balancing process is to achieve not a perfect or a mechanical sentence, but a condign one — one that is decent, appropriate and deserved under all attendant circumstances.
In stating his reasons for the one day sentence, Judge Kane includes, among others:
First, this is a grievous offense which does not merit lenient treatment, and a one-day sentence followed by life-time supervised release with a period of home confinement is the strongest penalty I can exact without putting Rausch’s life at substantial risk.
Second, Rausch’s extremely poor health and the complexity of his needs for medical care override any value that further imprisonment would have.
One other note: Judge Kane, as did a Nebraska federal judge before him, criticized the Sentencing Commission's formulation of the child p*rn guidelines:
The Government asserts that because the Sentencing Guidelines were constructed at the direction of Congress, they should receive great weight. Ordinarily this is so, but not when Congress ignores the recommendations and studies of the Sentencing Commission as it did with this crime, and thereby negates the rationale for affording such weight to them.
The Nebraska judge had opined:
[F]or policy reasons, and because statutory mandatory minima dictated many terms of the Guidelines, the Commission departed from past practices in setting offense levels for such crimes as . . . child crimes and sexual offenses. Consequently, the Guideline ranges of imprisonment for those crimes are a less reliable appraisal of a fair sentence.
In cases involving application of Guidelines that do not exemplify the Commission’s exercise of its characteristic institutional role — basing its determinations on “‘empirical data and national experience, guided by a professional staff with appropriate expertise’”— it is not an abuse of discretion for a district court to conclude when sentencing a particular defendant that application of the guideline will yield a sentence “greater than necessary” to achieve the purposes set out in Section 3553(a).
Now that the guidelines are no longer mandatory, Judge Kane was free to do what judges are supposed to do: treat each case individually and use his discretion.
No word yet on whether the Government will appeal.
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