From Doc Berman at Sentencing Law & Policy, the story of Tom Coughlin of Wal-Mart (not New York Giants) fame on his resentence after remand from the 8th Circuit.  Coughlin, convicted of wire fraud and tax evasion for stealing gift cards, had been sentenced to five years probation (with 27 months home detention), which the Circuit ruled did not “fall within the range of reasonableness.”

But that was before Gall.  Now is after Gall.

After a three-hour sentencing hearing Friday, U.S. District Judge Robert Dawson again sentenced Coughlin to five years of probation and 27 months of home detention with an electronic monitoring device. Added to Coughlin’s sentence Friday was 1, 500 hours of community service….

Does it not seem that the word “reasonable” is just too much of a moving target to suffice for appellate review?  It has been the root of constant argument, since one person’s reasonable never seems to be the same as another’s, despite the agreement that reasonable people may differ.  Ultimately, the only view of reasonable that really counts is Justice Scalia’s, but he’s way too busy to have to decide “reasonableness” in every instance.  So we have no choice but to let someone else decide from time to time.  But I digress.

Judge Dawson’s adherence to his original sentence in the post-Gall world demonstrates his admirable appreciation of his function.  But the reason for the original sentence is worth another look:

Dawson said he declined to send Coughlin to prison because he had no previous criminal record, because Coughlin had a record of community service, and because of the former executive’s public fall from his position in life and the effect it had on him and his family.  Prison would threaten the life of a nonviolent offender, the judge said. Dawson said he believed the sentence “punished the defendant sufficiently but not greater than necessary.”…

While certainly not a guidelines compatible rationale (thank God), there is one sentence that stands out.  “Prison would threaten the life of a nonviolent offender.”  This statement is huge.  This statement says that the United States cannot maintain sufficient control over its prison system to assure the safety of citizens in its custody.  This is a direct condemnation of the United States Bureau of Prisons.

But it may be just a tad overwrought for a justification for probation.  Coughlin wouldn’t be sent to a Supermax, locked up next to serial killers and terrorists.  He would likely end up at a camp, without barbed-wire or guarded armed to the teeth.  The most likely injury at a federal prison camp is a paper cut, not a shiv.  The only potential for rape would be in a hard-fought game of Gin Rummy.  The feds, unlike our friends in New York, run a fairly good operation when it comes to non-violent, white collar prisoners.  No, it isn’t a pleasant existence (contrary to some assumptions), but it isn’t death-threatening either.

It’s not that I don’t think Judge Dawson’s statement is terrific.  I just don’t think it will bear out.  On the other hand, it has great applicability for vulnerable prisoners who won’t enjoy the benefit of prison camps during their time in government custody.  Some clients, particularly more effeminate gays, will be tortured for who they are, and no one can protect them without imposing restrictions that will make their sentence unbearably miserable, such as protective custody. 

There are massive failings in prisons, all prisons, to safeguard inmates from other inmates.  Harm can, and likely will, befall those inmates who aren’t “tough enough” to handle hard time or defend themselves from others.  Many people couldn’t care less about this, and see it as just part of the deal.  If these prisoners don’t like it, they shouldn’t have committed the crime.  This rationalization, of course, is nonsensical.  The punishment is prison, not rape, beatings or death at the hands of more violent inmates.

But it is extremely doubtful that Tom Coughlin’s life would ever be at risk. Since it’s unlikely that Judge Dawson’s decision would portend the end of incarceration for non-violent defendants, perhaps it would be best that he save that line for people whose life would truly be threatened by imprisonment, rather than squander it.