Deterrence
Case Analysis
June
4, 2007
The
court’s discussion of marginal deterrence creates an intracircuit split,
which the panel inexplicably fails to acknowledge.
Beier’s
argument had support in prior precedent, U.S. v. Newsom, 402 F.3d 780 (7th Cir.
2005). The court acknowledged the case, but failed to discuss it in any way.
Newsom,
like Beier, was convicted of child pornography offenses, and received 324 months,
just short of the 360 month maximum that Beier received.
The
court did not call the sentence unreasonable, but issued a Paladino remand, which
included the following suggestion:
“As
we noted, the result of the application of the Guidelines was a sentence of 324
months’ imprisonment, or 27 years. Those who think that the idea of marginal
deterrence should play some part in criminal sentences — that is, that the
harshest sentences should be reserved for the most culpable behavior — might
find little room left above Newsom’s sentence for the child abuser who physically
harms his victim, who abuses many different children, or who in other ways inflicts
greater harm on his victims and society (cites omitted).”
For
the reasons given by the court in the case at bar, the principle of marginal deterrence
(as that term is used by economists, at least) does not apply to this case, and
Beier’s argument that it does apply misunderstands the principle. The court
in Newsom also misunderstood the principle.
However,
given the language in Newsom, Beier was on solid footing in arguing that marginal
deterrence did support a lower sentence.
At
least one lower court in Wisconsin has already relied on the dicta in Newsom.
Citing
Newsom, Judge Lynn Adelman observed that the Seventh Circuit has stated that statutory
maximums should be reserved for the worst offenders.
Judge Adelman
also cited U.S. v. Lister, 432 F.3d 754, 762 (7th Cir. 2005), in which the Seventh
Circuit stated that a near-maximum sentence “leaves little room for the proportional
sentencing that motivated Congress to pass the sentencing guidelines, a motivation
recognized and supported by the Supreme Court’s second holding of Booker.
Booker, 125 S.Ct. at 767-68 (citing U.S.S.G. § 1A1.1 application note).”
In
the wake of the decision in the case at bar, attorneys and lower courts face the
following dilemma: the court is correct in the case at bar that the principle
of marginal deterrence is inapplicable in these cases; but the court fails to
distinguish binding precedent stating that maximum sentences should be reserved
for the worst offenders.
Accordingly,
attorneys whose clients’ guideline ranges are at or near the statutory maximum,
but who could have engaged in much worse conduct and still get the same sentence,
would be wise to avoid using the term “marginal deterrence” and avoid
citing Newsom. That may only get you an economics lesson from Judge Posner.
Instead,
attorneys should cite Lister and speak of “proportional sentencing.”
The court could still renounce proportional sentencing, but it will at least force
the court to squarely acknowledge the split in authority.
Click
here for Main Story.
David
Ziemer can be reached by email.
