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DOJ Recommends 20 Year Sentence For Don Siegelman

After a federal appellate court threw out two of Don Siegelman's less serious convictions and ordered that he be resentenced, Jeralyn wrote:

The case now goes back to the trial court to resentence Siegelman solely on the first seven counts. Given all the recent case law on the non-binding nature of the sentencing guidelines and the need to consider the statutory factors in 18 U.S.C. 3553, the sentencing judge could resentence him to a term of much less than [the] 7 years [originally imposed]. But, given the Judge's imposition of the upward departure, I wouldn't hold my breath hoping he's inclined to cut the former Governor some slack.

Even though Jeralyn wisely cautioned that the judge, having imposed a longer sentence than the federal sentencing guidelines recommended, might not be inclined toward leniency, Siegelman's lawyers reasonably argue that Siegelman should receive a shorter sentence since he'll be sentenced for fewer crimes. It would also be reasonable for the Justice Department to argue for reinstatement of the originally imposed sentence on the theory that the more significant, unreversed crimes drove that sentence. But nothing about the Siegelman prosecution has been reasonable, including the Justice Department's latest recommendation that Siegelman be resentenced to a term of 20 years. [more ...]

Judges are usually wary of imposing a harsher sentence after a successful appeal. Unless the judge relies upon new evidence that justifies a longer sentence, an appellate court might presume that the judge imposed more time to retaliate against the defendant for exercising his right to challenge the judge's rulings on appeal.

The linked story does not make clear the government's reasons for recommending a 20 year sentence, and since (as is customary with sentencing documents) the letter containing those recommendations isn't part of the public record, the Justice Department has not commented publicly. According to one of Siegelman's lawyers, the government's recommendation is based in part on a desire to punish Siegelman for crimes that the court of appeals threw out or for which Siegelman was acquitted at trial. Remarkably, judges are allowed to consider acquitted conduct when deciding upon a sentence, although judges who respect the presumption of innocence are loathe to do so.

In any event, the judge obviously took into account the now overturned convictions at Siegelman's original sentencing. Considering those same allegations at the new sentencing hearing might persuade the judge to reimpose the same sentence, but it's hard to see how the overturned convictions would justify a longer sentence. The rationale for the Justice Department's request, if there is one, will be revealed at the new sentencing hearing -- maybe earlier if the AP discloses the contents of the government's letter in more detail.

Eric Holder, perhaps fearful that reigning in the prosecutors would lead to criticism that he's protecting a Democratic politician, seems to have washed his hands of the mess. Despite calls for Holder to examine Siegelman's prosecution (including, most recently, a request made by 75 former state attorneys general) and to dismiss the charges if they are tainted by prosecutorial misconduct -- the same benefit he gave to Ted Stevens -- Holder refuses to review Siegelman's case.

Things look bleak for Siegelman at this point. Most of his convictions were affirmed on appeal, his request for the full court to rehear the panel's unanimous appellate decision will probably be denied, and Holder won't intervene. Even if Karl Rove finally testifies as part of a House Judiciary Committee investigation, Congress has no power to free Siegelman from prison. President Obama could use the Scooter Libby precedent to commute Siegelman's sentence, but he isn't likely to undermine Holder's decision to let it be -- unless, perhaps, the Justice Department gets the 20 years it seeks. It seems inevitable that Siegelman will be returning to prison -- it's just a question of how long he'll be there.

As an aside, this post makes a convincing case that Siegelman is being punished for conduct in which other politicians -- including Texas Governors Rick Perry and George W. Bush -- have routinely engaged.

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  • Display: Sort:
    I may be wrong, (none / 0) (#1)
    by Birmingham Blues on Thu May 14, 2009 at 08:11:24 AM EST
    but I remain convinced that Siegelman was convicted at least in part because Richard Scrushy was acquitted of fraud charges in the HealthSouth trial.  There was a lot of anger here over the appearance that Scrushy "got away" with cooking the books.  The Siegelman/Scrushy prosecutors knew that and did everything they could to make sure the men were tried together.

    When I look at Randy "Duke" Cunningham, who took millions in bribes and even made requests for specific items but only got 8-1/4 years in prison, I can't understand how Siegelman could get, or deserve, a 20-year term.

    Is the Administration asleep? (none / 0) (#2)
    by jackson on Thu May 14, 2009 at 09:27:23 AM EST
    The original 7 year sentence was excessive.  the 20 year request is shocking and unprofessional.  Given the evdence of misbehavior by the US Attorney, why on earth hasn't Obama replaced her?  

    There is a similar runaway holdover US attorney in the Northern District of Alabama, and there are others around the country, and not a peep about a replacement.

    This is a very serious situation, and the inaction by Obama is perplexing

    I'll agree (none / 0) (#3)
    by Bemused on Thu May 14, 2009 at 09:39:27 AM EST
     that asking the district court to increase the sentence on remand is gross overreaching, but why is a seven year sentence for corrupt acts as governor of a state excessive? Excessive compared to what?

      I tend to think that the punishments imposed upon convicted politicians tend to be rather lenient whern compared to the punishments imposed upon non-violent drug offenders and pretty much on a par with those imposed upon run of the mill white collar criminals-- but I think abuse of the public trust is worse.

    Corrupt - who? (none / 0) (#4)
    by Lora on Thu May 14, 2009 at 11:06:37 AM EST
    There was a great deal wrong with Siegelman's prosecution.  The prosecution and trial were corrupt.  They should be thrown out.

    Parent
    What deals were made? (none / 0) (#5)
    by Lora on Thu May 14, 2009 at 11:10:31 AM EST
    Eric Holder, perhaps fearful that reigning in the prosecutors would lead to criticism that he's protecting a Democratic politician, seems to have washed his hands of the mess. Despite calls for Holder to examine Siegelman's prosecution (including, most recently, a request made by 75 former state attorneys general) and to dismiss the charges if they are tainted by prosecutorial misconduct -- the same benefit he gave to Ted Stevens -- Holder refuses to review Siegelman's case.

    I can't help wondering what deals were cut.  Don Siegelman apparently was too hot to touch.  Perhaps because he has consistently maintained that 1) Rove was directly involved in his prosecution, and 2) that the election he lost in 2002 was tampered with?

    the issue of whether convictions should be vacated (none / 0) (#6)
    by Bemused on Thu May 14, 2009 at 11:16:34 AM EST
     is different than whether an 87 month sentence is excessive for a person who has been convicted of the crimes.

      If the convictions are vacated then his sentence will be vacated. As it stands he has been convicted of 5 counts of public corruption.

     

    wouldn't be the first time that (none / 0) (#7)
    by DFLer on Thu May 14, 2009 at 11:55:02 AM EST
    there was a desire to punish (someone) for crimes ... for which the (defendant) was acquitted at trial.

    eg., O.J. Simpson

    Post-Appeal sentence (none / 0) (#8)
    by rea on Thu May 14, 2009 at 01:43:06 PM EST
    In my state (Michigan), at least, the rule is that a sentence can't be increased on remand for resentencing except based on post-conviction conduct, in order to avoid the appearance of punishing defendant for a successful appeal.  Evidently that salutary rule has not been adopted at the federal level.