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Wednesday, June 09, 2010

Time delayed sentencing gets off the ground!

Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent  opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found. 

My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that  Bueno herself and others do not think she is able to enjoy a "windfall" based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release  could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that's acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.

In any event, this view might be somewhat controversial. Professors Ristroph and Murray seem to think (per their critique in the YLJ) that obligations to care are basically fungible with obligations to serve time. We reject that argument in no uncertain terms in our reply, which you can find here. Are we right?

Posted by Administrators on June 9, 2010 at 01:51 PM in Article Spotlight, Criminal Law, Dan Markel, Privilege or Punish | Permalink


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You're right, that my experience with these things is only practical--and almost exclusively limited to state cases. But in the state system at least, it's by no means uncommon to either request or specifically negotiate a period of freedom before the execution of a sentence to allow for child care or other issues. I've regularly scheduled jail sentences for times the kids were off school, arranged intermittent sentences to coincide with school or work schedules, and insured in cases like the one we're talking about that the parents do the time staggered. It's fairly pro-forma, and a part of any decent client-centered practice. (I even had a murder case where we essentially delayed sentencing until my client died. He was 83 and ill when he took a plea to manslaughter, and as the statute wouldn't have allowed for compassionate release and he was already in critical care, we just adjourned sentencing for several years (saving the state a fortune) until the case was abated by death.) There may not be much literature on it, but that doesn't mean it isn't commonplace.

As for the math, on 60 months you do 51, minus probably six for participation in a drug program, (bringing you to 45) and I'm pretty certain the husband was not released pre-trial, so if he was in for about 9 months before being sentenced--a period right about in the sweet spot of what you'd expect, you get...36 months give or take which is exactly what HB had in mind.

Finally, as for the theoretical attempt to tactically delay sentencing by having kids? I suppose that's an abstract possibility, but not one worth spending much time on because quite simply no judge is going to let it happen. In my experience, judges have this odd aversion to being taken advantage of, and they tend to react peevishly. They've got that nursery on Rikers Island for a reason after all.

Posted by: David Feige | Jun 15, 2010 1:04:46 AM

David, as I understand the math, a 3 year adjournment is insufficient if the husband is slated for 60 months. A few reactions to your comments.
First, no one is saying this is a "big deal" -- our point is that time deferred incarceration can and should be used more frequently when the incarceration is occurring as a mode of retributive condemnation (not incapacitation). Perhaps this practice occurs regularly according to your experience though our research indicated that it was not discussed explicitly in the federal sentencing guidelines or among the several states' in their legislation. In fact, the fed guidelines commentary says that there should be sentencing discounts given to irreplaceable caregivers but only if the discount is sufficient to cure the problem. That's different from our position in two important ways. In any event, post-Booker, the guidelines are advisory so we're trying to explain a different and perhaps more plausible rationale for time-shifted punishment that judges can use in their discretion when they are concerned with even-handedness also. We didn't see that view expressly discussed in federal or state cases when we did our research on the topic the last few years. Perhaps you could point us to some statutes that expressly authorize this? (I'm not surprised if some judges did this in their own discretion--but those decisions are usually themselves somewhat opaque, which is why we think legislatures or sentencing commissions should be spearheading this effort.)

FWIW, I'm not trying to tell Judge Baer that he did a good or bad job specifically in this case. The point we develop in the book is that our idea (and its rationale) provides a framework for balancing the harms to innocent third parties against the fairness issues associated with treating similarly situated offenses alike, a point we think many people do and should value. It sounds from your analysis that you're relatively indifferent to the latter concern and instead prefer more individualized approaches to punishment. That's your prerogative, of course, but it's not a view I think is either laudable or constitutional (for reasons I'll elaborate in a separate work).

Moreover, while some people are anxious to get their prison term over with, the option value is what's important here, and that's what would be "priced" through the corresponding trade for extra sanctions. Otherwise, as the earlier "curious" commenter alluded to, there's a danger that people might indefinitely postpone their period of incarceration, which would be especially valuable given the fact that most people value an hour of freedom more now than an hour of freedom five years from now--in part b/c one could be dead five years from now.

Last, thanks for the charming idea to read the decision.

Posted by: Dan Markel | Jun 14, 2010 10:39:23 AM

What's the big deal here?
Essentially the judge adjourned the sentence until the co-defendant (and father) gets out from under his 60 month sentence and can take care of the kids. Nothing new or radical here at all. Happens pretty regularly when a couple is charged.

As for imposing additional restrictions: On what basis? Read the decision. It's a non-violent crime. She's got no record. She's educated and in school and doing fine learning cosmetology and taking care of the kids. I sometimes get confused when I read things like this, as posters seem so wedded to their theory they ignore the facts. Sure there's a benefit to her if you assume that delaying going to prison is a benefit. (Though Martha Stewart, Bernie Madoff and others certainly belie that proposition).

But let's assume that keeping the kids cared for is a benefit (to the state that doesn't have to deal with foster care and to her because she has the comfort of not seeing her kids destroyed). Why is it you think that she should have to pay extra for her peace of mind when there is no evidence at all that she actually needs supervision beyond a check-in every six months which the judge ordered in his opinion.

All of this seems a bit of an attempt to shoe-horn the decision into the "time-shifting" paradigm when the more natural discussion exists in the the context of the actual sentence which was (in part because of the kids) well below the guideline range.

Posted by: David Feige | Jun 12, 2010 4:15:17 PM

that was one of the questions we addressed in the book, and yes, we bite the bullet: if you have more kids during the delay period (after adjudication), then you only have the benefit available for the time that would have been necessary for the extant kids to mature or find other caregiving. Mind you: it's not a reproductive ban; it's an admittedly strong disincentive to having new kids to make sure people don't exploit the situation.

Posted by: Dan Markel | Jun 11, 2010 2:35:57 PM

What do you do about pregnancy and new kids occurring during the delay? If you allow time for the little ones to grow to 18, the convicted mom can reset the clock by having more. But are we comfortable with having a reproductive ban as one of the "modest restrictions on the liberty of [the convict] during that period of delay" ?

Posted by: curious | Jun 11, 2010 2:05:08 PM

Alice, that's a fair point. The effect of your view is to render them exchange-able but you are correct to note that such a view is not the same as indicating they're ontically the same thing. Thanks for the clarification.

Posted by: Dan Markel | Jun 10, 2010 6:07:05 PM

To describe someone as released from one obligation in order to take up another, which is the phrase Melissa and I used, is not to make any claim about fungibility of obligation. For example, the law sometimes requires employers to release employees from professional obligations in order to attend to familial or religious obligations. I don't believe such laws are premised on any assumption that professional obligations are "fungible" with familial or religious ones.

Posted by: Alice Ristroph | Jun 10, 2010 11:13:22 AM

The Seventh Circuit heard arguments today on a case in which the defendant was given a delayed sentence (while his wife served hers). The defendant argued that the district judge failed to give sufficient weight to his family obligations in sentencing him to a year and a day, but the judge did accommodate those obligations at least somewhat through the delayed sentence.


The panel is a good one: Posner, Wood, Hamilton.

Posted by: anon | Jun 9, 2010 10:15:08 PM

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