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Monday, September 19, 2005

Prison Conditions and Punishment Theory

The N.Y. Times reports that Dennis Kozlowski was sentenced today to 8 1/3-25 years in prison. I don't know enough about the facts of the case, the defendant's background, the harms his financial wrongdoings inflicted, etc., to comment on the sentence, other than to say that my own appearances before Justice Obus revealed him to be an eminently thoughtful and fair jurist, and on that ground alone I suspect that the sentence was well suited.

But, the Times article raises another interesting point: Unlike many federal white collar defendants who spend their increasingly long sentences in still low-security, and therefore generally safer, facilities, Kozlowski's entering the New York State prison system, where the "club fed" option does not exist. In State's prison, Kozlowski will experience an entirely different kind of incarceration than the Martha Stewarts of the world, with a much greater potential for him to be affected by prison violence.

The Times article references "legal analysts" who suggested that this difference in prison conditions may equalize Kozlowski's sentence, which includes parole eligibility, with the longer sentences received by some of his federal contemporaries. I have no idea whether Judge Obus weighed this factor in deciding sentence, although I doubt it.

What role, however, if any, should likely prison conditions play in a judge's sentencing determination when those conditions either seem disproportionately harsh in relation to the crime itself, or so aggravate the experience of incarceration as perhaps to change the character of the sentence itself?

With defendants convicted of particularly violent crimes--frequently child and other sex offenders--we often hear people say, "He'll get what he deserves in jail," suggesting that for some offenders prison violence properly is part of the punishment. With non-violent offenders such as Kozlowski, however, where most people probably would feel less comfortable expressly connecting prison violence to his just deserts or some utilitarian aim flowing from his incarceration, we seem to pretend that prison violence doesn't exist at sentencing. Instead, it's usually left to be addressed at some other level: legislation, prison policies, or 8th amendment claims, for example. The comment in the Times acknowledging this factor and offering it as partial justification for a sentence is very unusual, in my experience.

I suspect that if I had explicitly incorporated this factor into my sentencing arguments as a defense lawyer, judges wouldn't have bought it--and perhaps properly so. For example, the argument might go, "Your Honor, this non-violent offender will be incarcerated under conditions where he will likely experience prison violence, which he does not deserve. So, give him less time." Or, "Your Honor, this defendant has been convicted of child abuse and therefore likely will be the target of harsh prison violence, aggravating his punishment for every day he spends there. He consequently deserves less overall time, or we can accomplish our penal goals in less time."

Should sentencing judges more openly consider this factor in any manner in fashioning an appropriate sentence? If so, when? And, what objective guildlines possibly can guide this sort of consideration?

Posted by Brooks Holland on September 19, 2005 at 07:17 PM in Criminal Law | Permalink


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Kozlowski will be able to buy prison protection, so I wouldn't worry too much about him. Anyhow, when I was 16 or so a friend did some serious vandalizing. He was a little guy (5'2" and 110 lbs.). The issue was whether he should be tried as a juvenile or an adult. His lawyer argued that he should be tried as a juvenile since he would never survive an adult prison. The judge agreed.

I think a judge who is not sympathetic to the argument that conditions of confinement are part of punishment is complicit in prison rape. Judge Posner wrote in a DeShaneyesq case (paraphrase): "In either case the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to lions." If a judge knows that a defendant will be raped, and he throws him into prison anyway, the judge is as much responsible for the harm suffered as are the lions.

Posted by: Mike | Sep 27, 2005 8:38:14 PM

Update: The NY Times has an editorial on Kozlowski's sentence today, at http://www.nytimes.com/2005/09/20/opinion/20tue4.html, that highlights the "objective application" concern I raised in my initial post. The Times argues that if a "hard time" factor is taken into consideration at sentencing, it inevitably and unfairly will favor "suit and tie" defendants over "jeans and t-shirt" defendants, and that "any small-time embezzler convicted in New York State faces the same horror of bunking with violent criminals," and therefore so should Kozlowski.

Posted by: Brooks | Sep 20, 2005 1:22:16 PM

There may be some good coming from this. Suppose Kozlowski gets sent to Attica - which is entirely within the realm of possibility under NYS' current policies. When some of his friends (the ones he still has) come to visit, they will get to see just what country clubs Attica and other state prisons are like. While Sol Wachtler made a public change of heart after his incarceration - from lock-'em-up into there's-gotta-be-something-better-than-prison - no one really listened to him (particularly because his crime was so bizaare). Let some of Kozlowski's friends take the bus ride to Dannemora and see what it's like. Maybe then (but not likely) we'll get some prominent people talking about reforming the prison-industrial complex.

Posted by: scribe | Sep 20, 2005 11:01:37 AM

Thanks Kaimi -- I'll definitely take a look at these!

Posted by: Brooks | Sep 20, 2005 1:51:10 AM


Here are my notes on the topic from three years ago. I don't know if any of the cases have been overruled -- for that matter, the status of three-year-old downward departure law is tenuous at best, given the past year's developments -- but it gives an idea of how courts departed in the past on this ground:

Extreme Vulnerability to Prison Conditions
These are generally cases where a defendant is feminine in appearance and might be subject to sexual assault in prison. United States v. Gonzalez, 945 F.2d 525 (2d Cir. 1991); United States v. Lara, 905 F.2d 599 (2d Cir. 1990).
Even without finding explicit danger of sexual assault, a departure may be granted for a female defendant who is slight in physical stature and emotionally vulnerable. United States v. Flowers, 983 F.Supp. 159 (E.D.N.Y. 1997).
HIV positive status may warrant departure. United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y. 1998).
Mental Retardation may warrant departure for vulnerability to prison. United States v. Mena, 968 F.Supp. 115 (E.D.N.Y. 1995).
Highly Public Trials: Defendant police officers in highly public trials are especially vulnerable to abuse in prison. United States v. Koon, 518 U.S. 81 (1996); United States v. Volpe, 78 F.Supp.2d 76 (E.D.N.Y. 1999).

Posted by: Kaimi | Sep 20, 2005 1:07:26 AM

My judge downward departed on several occasions for unusual susceptibility to prison circumstances. (Side note -- didn't the defendants in Koon get a departure for that very reason?)

Of course, the Second Circuit didn't always agree with him.

Posted by: Kaimi | Sep 20, 2005 12:57:42 AM

I don't think that sentencing judges could openly acknowledge this stuff, not without revealing the savage conditions of the system, and their participation therein. And this would be too much cognitive dissonance for anyone who believes they are a humanist.

Posted by: Paul Gowder | Sep 19, 2005 10:41:56 PM

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