The 11th Circuit reversed the sentence of probation imposed on Birmingham, Alabama, police officer Corey Hooper following his conviction for deprivation of rights under color of law. He did so by beating a cuffed and compliant suspect in the face. The guidelines range for Hooper was 70 to 87 months, but the judge departed downward to 60 months probation.
Here, the district court abused its discretion when it issued Hooper a 60-month probationary sentence. First, the court expressly declined to consider the need for Hooper’s sentence to adequately deter other police officers from using excessive force. 18 U.S.C. § 3553(a)(2)(B). By ignoring a pertinent § 3553(a) factor that was one of the “key purposes” of sentencing, the court issued a substantively unreasonable sentence.
Among the legitimate purposes of a sentence is “general deterrence,” sending a message to others that engaging in criminal conduct will result in certain consequences. The theory behind general deterrence is perfectly reasonable. Experience suggests otherwise.
In Manhattan, Judge Ronald Zweibel imposed a sentence of three months on Cecily McMillan, following her conviction for elbowing a cop, followed by probation. This happened during Occupy Wall Street protests, where McMillan contends she was in the middle of a pub crawl and, feeling a hand grab her breast, reacted as any normal woman would. The hand belonged to Police Officer Grantley Bovell. So too did the face on the receiving end of the elbow.
Before imposition of sentence, McMillan was offered her opportunity to speak to the court. This is the point where judges want to hear sincere expressions of remorse. It didn’t happen that way.
Before the sentence was delivered, Ms. McMillan remained mostly defiant, even as she characterized the encounter with the officer as “an accident.”
“I cannot confess to a crime I did not commit,” she said in State Supreme Court in Manhattan.
Unsurprisingly, the judge was not moved.
“A civilized society must not allow an assault to be committed under the guise of civil disobedience,” Justice Zweibel said.
The prosecutors argued that a three month sentence was necessary to “send a message”:
Before sentencing, Shanda Strain, an assistant district attorney, said Ms. McMillan deserved a three-month stay in jail because she had falsely accused Officer Bovell of grabbing her breast, lying under oath “to avoid responsibility for her actions.”
“This trial was not a referendum on a large social cause or movement, though the defendant tried and continues to try to make it just that,” Ms. Strain said. Then she added, “In essence, she has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.”
While a stirring socio-legal commentary, that wasn’t McMillan’s argument against conviction. She reacted to her breast being grabbed. Bovell denied grabbing her breast. McMillan lost the swearing contest, which still puts her in the 99%, though a different one from the socio-economic group.
Her lawyer, Martin Stoler, argued that McMillan already paid a high price for an elbow:
Mr. Stolar told the judge that the bruises and mental trauma that Ms. McMillan had suffered during her arrest were punishment enough.
“You touch a police officer and get the hell beat out of you,” he said outside court. “That’s what happened to her. That’s enough of a deterrent.”
Nobody elbows a cop, right or wrong, without feeling the tangible displeasure of a beating. For the officer’s protection, of course. McMillan was no exception.
Before sentence, tons of letters poured into court imploring Judge Zwiebel to be lenient. McMillan was visited by the Russian activist band Pussy Riot on Rikers Island, which the band mistook for a five-star Soviet resort. The room was filled with supporters as McMillan was brought out to learn her fate.
But there was a message to be sent. To a large extent, the interest and concern of so many made the lesson all the more important. With so many people watching the sentencing of Cecily McMillan, the value of general deterrence was greatly increased. Had nobody said a word, perhaps Judge Zweibel would have felt far less, perhaps even no, pressure to send a message. With the world watching, he had no choice.
A sentence is served by a human being. The message sent to others brings no comfort to the prisoner, as those others won’t be sharing the cell with her, and will go on with their regular lives, enjoying pub crawls and railing at the unfairness of the system, while sleeping in their own bed at night. The prisoner will be alone at night, wondering what to do with herself in the morning.
When the 11th Circuit reversed Hooper’s sentence, there was a sense of warmth at the thought that police officers, who believe themselves to be invincible and above the reach of the law that applies to those lesser creatures without shields, will learn that they too can be convicted for their crimes, that they too can sit in their cells at night wondering whether someone will find a soft spot in their rib cage in the yard tomorrow.
Police have long been sent a message that the legal system, judges will extend them courtesies beyond anyone else, because . . . they are cops.
But does that mean the message sent via Cecily McMillan will work the same way? Will protesters stop protesting? Will women who feel something touch their breast not react for fear that the person behind them, on the south end of their elbow, might wear a shield?
Regardless of what really happened between McMillan and Bovell, the message sent is based on the perspective of those receiving it. Judge Zwiebel may have been well-intended in explaining that a civilized society cannot tolerate this conduct, but the message received is that the legal system is owned by the 1% and the cops.