The Second Circuit decided a challenge to the “Justice for All Act” of 2004, 18 U.S.C. § 3771 (2004), in US v. Eberhard.  The defendant entered into a plea agreement that called him to be sentenced under level 30, criminal history I, at 97 to 121 months, with neither side to suggest otherwise. 

The PSR came back with a bit of a surprise, adding 4 points for supervisor, making the defendant a level 34, with guidelines of 151 to 188 months.  Somehow, the PSR then recommended a sentence of 96 months.  The defense apparently thought it best not to dispute the PSR, and the 4 point adjustment was left hanging.

The Judge, Robert Sweet. issued a written sentencing opinion in advance of sentencing, adopting the PSR and stating that, subject to modification at sentence, the sentence would be 151 months.

Then came the sentence.  Then came the victims.

At that sentencing hearing, Judge Sweet heard from several victims, who urged a draconian sentence.

After hearing from victims, the government, and Eberhard, Judge Sweet calculated a Guidelines range of 151 to 188 months, and expressed an inclination to sentence at the bottom of that range, in order to allow Eberhard an opportunity to make restitution once his prison term had ended. Judge Sweet then imposed a sentence of 160 months — nine months longer than foreshadowed in the written sentencing opinion.

The primary argument raised before the Circuit was that compliance with the Justice For All Act (don’t you just love the name!) violated the ex post facto clause.  The Circuit blew this argument away, holding that judges had the authority, if not the mandate, to allow victims to speak toward sentence since 1994.

The Court then goes on to state that regardless, this law wouldn’t implicate ex post facto in any event.

The Clause prohibits Congress from passing laws that (1) “make[] an action, done before the passing of the law, and which was innocent when done, criminal; and punish[] such action,” (2)  “aggravate[] a crime,” making it “greater” than when committed, (3) increase the punishment beyond that prescribed when the action was done, or (4) “alter[] the legal rules of evidence, [to] receive[] less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); see also Carmell v. Texas, 529 U.S. 513, 530 (2000).  A law requiring that  victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause.

I can’t help but feel that somebody’s law clerk dropped the ball and forgot to put in the bit of writing that is supposed to create a logical nexus between the last sentence and the stuff that precedes it.

Missing from the decision, however, is any explanation of how the defendant ended up, after a plea agreement, a PSR recommendation, a sentencing opinion and nothing else transpiring in the interim other than the “vindictive victim statements” getting the extra 9 months.  Indeed, Judge Sweet at the actual, physical, real life sentence, announces that he was giving the defendant the bottom of the 151 months.

So where did the extra 9 months come from?

The Circuit expressly refused to adopt the defense’s position that the 9 months was a result of the judge trying to appease the victims.  Let’s assume, for a moment, that the Circuit was just covering an upward sentence because it has an affinity for sentences higher than they could otherwise be.  Did the extra 9 months, tacked onto the guidelines sentence of 151, change anything for the victims?   Well, it does prolong the time before restitution by that period, which seems contrary to the victims’ interests, but not long enough to make it significant.

Then why?

This goes back to my argument that this newly created “right” for victims to have their say as to sentence, after a contract has been made between government and defendant, expectations and understandings firmed up, is fundamentally wrong in the criminal justice system.  Did Judge Sweet, after making it about as clear as humanly possible where he was coming out on Eberhard’s sentence, feel constrained to give the victims some bone, some recognition of their suffering, beyond what was already on the table?

The prosecutor should take the victims’ concerns into consideration in fashioning the plea offer, but once there is a deal on the table, a deal accepted, a deal to which the defendant is committed, it is no longer “fair” to give the victims a chance to use the negotiated deal as the baseline and then demand more. 

If there was no harm, no victim, no wrong, then it wouldn’t be a crime.  How many fingers get to poke the judge for another 9 months after the sentence has been all but uttered?

H/T Doug Berman